[2017] KEELC 1070 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC NO.57 OF 2017

MICHAEL NJONGE MUIGAI.....................................PLAINTIFF/APPLICANT

VERSUS

PETER MUNGAI NJONGE.......................1ST DEFENDANT/RESPONDENT

ANTHONY KIMANI NJONGE.................2ND DEFENDANT/RESPONDENT

FRANCIS NJUGUNA NJONGE...............3RD DEFENDANT/RESPONDENT

RICHARD WANJOYA NJERI..................4TH DEFENDANT/RESPONDENT

RULING

By Plaintdated 8th February 2017, the Plaintiff/Applicant herein Michael Njoroge Muigai, sought for judgement against the Defendants herein who are his sons, jointly and severally for these order:-

a)A permanent injunction do issue restraining the Defendants, their agents, servants, employees, people working under them or for themselves from entering, encroaching, selling, demanding rent or in any other way interfering with the Plaintiff’s quiet possession and use of plot no.LR.74/269 and Plot No.LR.No.74/170 respectively.

b)Costs of the suit.

c)Any other or further relief that this Court may deem fit to grant.

Simultaneous to the Plaint,the Plaintiff/Applicant also filed a Notice of Motionapplication even dated and sought for the following orders:-

a)Spent

b)Spent.

c)That a temporary injunction be issued restraining the Defendants/Respondents, their agents/servants, people working under them or for them from intimidating, harassing and/or assaulting the Plaintiff and from entering, encroaching, demanding rent, selling or in any other way interfering with the Plaintiff’s/Applicant’s quiet possession and use of the plot numbers LR.74/269 and LR.74/170 pending the hearing and determination of this suit.

d)That the costs of this application be borne by the Defendants/Respondents.

The Applicant based his application on the following grounds:-

i.The Plaintiff/Applicant is the sole registered proprietor of plot number LR.74/170 and Plot number LR.74/269.

ii.The Defendants/Respondents being his sons have started to harass and intimidate him to allocate to them the said plots after they sold others that he had given them. They have physically assaulted him.

iii.The Defendants/Respondents have forcibly entered into plot numbers LR.74/269 and LR.74/170, where the Plaintiff has put up rented houses and have started to collect rent therein thereby denying the Plaintiff/Applicant his livelihood as he has no one else to assist him.

Applicant also annexed hisSupporting Affidavit in support of the instant application and averred that the owned several plots which he later allocated to the Defendants as his sons. However, he remained as the registered owner of plots No.LR.No.74/269 andLR.No.74/170, which he owns todate. It was his contention that after he allocated the Defendants/Respondents their respective plots, they sold them and misappropriated the proceeds thereof. He further contended that they have now ganged up and have been harassing the Applicant to give them the remaining plots. He further contended that they have even physically assaulted him as is evident from the P3 Form annexture MNM4. It was his further contention that the Defendants have entered into plot No.LR.74/170, where he has built some rental houses for his sustenance and they have forcibly taken over the collection of rent to the detriment of the Applicant. He averred that he needs the said rental income for his survival and he urged the Court to allow his claim.

The application is opposed by the Defendants and they authorized Peter Mungai Njonge, to swear a Replying Affidavit on their behalf. He reiterated that the Respondents are indeed the children of the Plaintiff/Applicant and that on 6th December 2000, the Plaintiff distributed his assets including the two parcels of land to his beneficiaries as is evident from annexture PMN1. He further averred that upon the said distribution, the beneficiaries took possession of their respective land parcels including the two parcels of land which was taken by their late brother, Mwangi Njonge. It was his contention that the children of the late Mwangi Njonge live on the suit property. It was his contention that the Plaintiff has changed his mind, 16 years later, when he had already allowed the rightful beneficiaries to take possession and develop their entitlements. It was his further contention that the prayers sought herein would jeopardize the said beneficiaries. He urged the Court to dismiss the instant application with costs.

The Applicant filed a further affidavit and reiterated that indeed he gave the Defendants their share from his properties but they all disposed off their shares, misused the proceeds thereof and have now gone for his remaining properties, which is a source of his livelihood. He further reiterated that plots Nos.LR.74/269 and LR.74/170 are all his and they were not allocated to any of the Defendants by the Applicant.

The application was canvassed by way of written submissions. Jessee Kariuki & Co. Advocates for the Plaintiff/Applicant filed his written submissions on 6th July 2017, and urged the Court to allow the instant application. It was submitted that the Plaintiff/Applicant own the suit properties with the full rights of use and access as provided by Section 24 of the Land Registration Act which provides as follows:-

Subject to this Act—

(a)the registration of a person as the proprietor of land shallvest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

(b)the registration of a person as the proprietor of a lease shallvest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.

The Plaintiff/Applicant also submitted that he has satisfied the conditions for grant of injunctive orders as enunciated in the case of Giella…Vs…Cassman Brown Co. Ltd (1973) EA 358. Therefore, the Applicant urged the Court to allow his application.

The Law Firm of Muturi Njoroge & Co.Advocates for the Defendants/Respondents filed their written submissions on 10th July 2017 and urged the Court to dismiss the instant application. It was submitted that the Applicant has not met the threshold for grant of injunctive orders as was elucidated in the case of Giella…Vs…Cassman Brown Co. Ltd (supra). Further it was submitted that grant of orders sought would amount to an eviction as the suit properties were distributed to the Respondents by the Plaintiff and the children of the late Mwangi Njonge reside on the suit property. It was also submitted that since the only prayer sought in the Plaint is an order of permanent injunction, grant of interlocutory injunction at this stage would amount to grant of final order at the interlocutory stage, and the said order would amount to eviction before the suit is heard and determined. The Court was urged to dismiss the instant application with costs.

The Court has carefully considered the instant Notice of Motion and the pleadings in general. The Court has also considered the annextures thereto, the written submissions and the relevant provisions of law and the Court will render itself as follows;-

The orders sought herein are injunctive orders which are equitable reliefs granted at the discretion of the Court. However this discretion must be exercised judicially. See the case of Isaac Awoundo & 4 Others..Vs..

Mr. Kulal Ltd, Civil Appeal No.191 of 1997, where the Court of Appeal held that:-

“Grant of injunction being discretionary will only be interfered with if it is shown that the Judge acted on wrong principles or failed to take into account a relevant factor or took into account an irrelevant factor or short of this that the discretion is plainly wrong”.

Further at this stage the Applicant is not required to prove his case but only to establish the criteria for grant of injunctive orders. The criteria to be consider in deciding whether to grant injunctive orders or not is the one laid down in the case of Giella..Vs..Cassman Brown & Co. Ltd (supra) and later pronounced in other judicial decisions. In the case of Kibutiri…Vs…Kenya Shell, Nairobi High Court, Civil Case No.3398 of 1980 (1981) KLR, the Court held that:-

“The conditions for granting a temporary injunction is East Africa are well known and these are: First, the Applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which might not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience. See also E.A Industries ..Vs..Trufoods (1972) EA 420. ”

The Plaintiff/Applicant needed to first establish that he has a prima facie case with probability of success. In the case of Mrao…Vs…First American Bank of Kenya Ltd & Others (2003) KLR 125, the Court held that;

‘A prima-facie case means more than an arguable case. It means that the evidence must show an infringement of a right and the probability of success of the Applicant’s case at the trial”.

It is evident that the Plaintiff/Applicant is the registered owner of the suit properties herein LR.No.74/269 and LR.No.74/170. It is also evident that he had distributed his other properties to his children, the Defendants herein included. The Plaintiff has alleged that the Defendants/Respondents have invaded his remaining two suit properties and have even started to collect rent from the tenants therein, thus denying him his livelihood.

The Defendants/Respondents have not denied having occupied the suit property. However, they alleged that the Plaintiff distributed these two parcels of land to his children and he has now changed his mind. That if the orders sought are granted, that would amount to eviction. However, there is no doubt that the suit properties are registered in favour of the Plaintiff. As a registered proprietor, his rights are protected under Section 24 of the Land Registration Act which provides:-

(a)the registration of a person as the proprietor of land shallvest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

(b)the registration of a person as the proprietor of a lease shallvest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.

Such rights include access to the proprietor’s property, use and quiet enjoyment of the same. If the Defendants have encroached on the Plaintiff’s parcels of land, then they have infringed or violated his rights. It is evident that the purpose of seeking an injunction is to protect the rights of the Plaintiff from violation of an act and which act is not based on apprehension or anticipation but on real action. See the case of Stephen Juma & Another…Vs…Executive Committee Kenya Sugar Growers Association, Kisumu HCCNo.5 of 2005.

Having found that the actions of the Defendants herein amount to infringement of the Plaintiff’s right to enjoy, use and control his property, the Court finds that the Applicant has established that he has a prima-facie case with probability of success.

On the second limb, the Applicant alleged that the Respondents have been harassing him and they even assaulted him as is evidenced by the P3 form, annexture MNM4. Further that the Respondents have resorted to collecting rent from the suit properties thus denying the Applicant’s his only source of livelihood. That being the case, the Applicant has established that if the orders are not granted, he will suffer irreparable loss which cannot be compensated by an award of damages.

On the third limb, the Court is not in doubt. Even if the Court was to decide on a balance of convenience, the same would tilt in favour of the Plaintiff/Applicant who is the registered proprietor of the suit properties.

Having now carefully considered the instant Notice of Motion application dated 8th February 2017, the Court finds it merited and the said application is allowed entirely in terms of prayer no.C. The Applicant is also entitled to costs of this application.

It is so ordered.

Dated, Signed and Delivered at Thika this 3rd day of November 2017.

L. GACHERU

JUDGE

In the presence of

Mr. Kinyanjui holding brief for Mr. Kariuki for Plaintiff/Applicant

Mr. Njoroge holding brief for Mr. Muturi for Defendants/Respondents

Lucy - Court clerk.

L. GACHERU

JUDGE

3/11/2017

Court–Ruling read in open court in the presence of the above stated advocates.

L. GACHERU

JUDGE

3/11/2017