[2023] KEELC 19167 (KLR)

Muriuki & 4 others v Haji & 15 others (Environment & Land Case E097 & E122 of 2023 (Consolidated)) [2023] KEELC 19167 (KLR) (24 July 2023) (Ruling)

Neutral citation: [2023] KEELC 19167 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E097 & E122 of 2023 (Consolidated)

EK Wabwoto, J

July 24, 2023

Between

Ephantus Mugo Muriuki

1st Plaintiff

Dennis Thuo

2nd Plaintiff

Martin Thige

3rd Plaintiff

Julius Ngatia

4th Plaintiff

Charles Ngugi

5th Plaintiff

and

Ubdi Haji

1st Defendant

Fatuma Maalim Alio

2nd Defendant

Muktar Abdullie Omar

3rd Defendant

Muhyidin Mohamed Dhuhulow

4th Defendant

Adan Gabone Noor

5th Defendant

Hawa Elmi Sheikh

6th Defendant

Ali Rukenyo Ahmed

7th Defendant

Abdi Kafa Jama

8th Defendant

Mohamed Kulimye

9th Defendant

Abdullahi Omar Farah

10th Defendant

Chief Land Registrar

11th Defendant

Attorney General

12th Defendant

National Land Commission

13th Defendant

Commisioner for Lands

14th Defendant

Nairobi City County Government

15th Defendant

Director of Physical Planning

16th Defendant

Ruling

1. This ruling is in respect to two applications dated 13th February 2023 and 24th March 2023. The 1st Plaintiff filed a Notice of Motion Application dated 13th February 2023 which was accompanied by a Supporting Affidavit sworn by Ephantus Mugo Muriuki. He sought temporary injunctive orders restraining the 1st to 7th and 11th Defendants from erecting any structures and/or engaging in any further dealings on the disputed land namely Nairobi Block 104/525, 526, 527,529, 530, 531, 534 and 535 in any manner against the intended purposes it was set aside for pending hearing and determination of the suit and he further sought a temporary injunctive orders restraining the 7th, 11th and 16th to 13th Defendants from issuing any further allotment letters in relation to lands namely Nairobi Block 104/525, 526, 527,529, 530, 531, 534 and 535 pending hearing and determination of this suit.

2. The Application was premised on the following grounds;i.That the Applicant is the chairman of Starehe Community Group which is a member of Juja Development Company Limited, the original proprietor of L.R 209/4195 (Currently Nairobi Block 104 Mlango Kubwa located in Juja road Estate measuring 40. 7 acres.ii.That on 3rd September, 1986 the Director of Surveys wrote to the Chief Land Registrar informing them of the change in parcel number from 209/4195 to 1-271 and enclosed a new Registry Index Map (RIM).iii.That Nairobi Block 104/271 was changed to parcel NO. 104/520 under unclear circumstances when the Director of Survey sent a letter to the Commissioner of lands sometime around December 1994 informing them of the RIM Amendment to reflect the new parcel number 104/520. iv.That parcels numbers Nairobi Block 104/271 and 104/520 are one and the same.v.That the alienation of Nairobi Block 104/271 and its subsequent unclear change of title to Nairobi Block 104/520 was done fraudulently in circumstances that smacked of corruption and in breach of the provisions of the law and has raised great public concern.vi.That an official search indicates that the 1st Respondent was issued with a certificate of lease on 5th February 2002 with respect to Nairobi Block 104/520 who has subdivided the said property and constructed maisonettes for sale and proceeded to sell some of the parcels of land to the 2nd – 7th Respondents.vii.That there is need to preserve the parcel of land known as Nairobi Block 104/520 to obviate any dealings with the land in a manner that may render this application nugatory as well as to protect the interests of Starehe Community Group.

3. The 2nd -10th Defendants filed an application dated 24th March 2023 seeking an injunction against the Plaintiffs from entering, selling, accessing or in any manner from interfering with the 2nd to 10th Defendants’ quiet enjoyment, utilization and construction on all those parcels of land known as Nairobi/Block 104/525-535 pending hearing and determination of the suit.

4. The application was made on the following grounds:i.They were the registered proprietors of the suit properties, which they were developing for ale and share of the proceeds.ii.The plaintiffs were said to be trespassing and interfering with the construction.

5. Pursuant to the directions issued by this court, it was directed that both applications be heard together and by way of written submissions to be filed by the parties. The 1st Plaintiff filed lengthy submissions dated 14th June 2023 while the 2nd to 10th Defendants filed written submissions dated 5th July 2023.

6. The 1st Plaintiff submitted that the suit property had been set aside for construction of a nursery school and recreational purpose, which the entire community had been deprived of. The 1st Plaintiff outlined three main issues for determination:i.Whether the Plaintiffs have established the existence of a prima facie case with a probability of success at the trialii.Whether the Plaintiffs might otherwise suffer irreparable injury which cannot adequately be compensated by an award of damages and;iii.If in doubt, the Court will determine the application on the balance of convenience.

7. In opposition of the 2nd to 10th Defendants application, the 1st Plaintiff argued that any loss likely to be suffered by the 2nd to 10th Defendants was not irreparable since it could be quantified and compensated in damages. It was also argued that there were some irregularities that cast doubt on the title registered to the 1st Defendant. It was submitted that should the 1st Defendant’s title be illegal, it was highly probable that good title did not pass to the 2nd-10th Defendants.

8. The 15th Defendant filed submissions dated 17th July 2023, it was submitted that the 1st Plaintiff neither pleaded or proved any material evidence that would confer proprietary interest on the suit properties. On the other hand, the 2nd- 10th Defendants had produced evidence to support their claim of being registered owners and have been in possession for almost a decade. It was also submitted that the Plaintiff’s did not manage to trace the exact root of the title and as such made false assumptions on the reparcellation of plot numbers.

9. I have considered the applications, rival affidavit, respective written submissions and authorities cited. In my view, the issue that arises for determination is whether both applications as filed by the parties are merited and warrant the grant of any of the orders sought.

10. Giella v Cassman Brown (1973) EA 358 and Nguruman Limitedv. Jan Bonde Nielsen & 2 Others, Ca No. 77 of 2012, set out the principles to determine the threshold for temporary injunction in that a party seeking a temporary injunction has to establish a prima facie case, whether the party seeking injunction will suffer irreparable damage if injunction is denied, and in case of doubt the issue in contention ought to be decided on the scale of a balance of convenience.

11. This Court is further guided by Section 63 of the Civil Procedure Act and Order 40(1) of the Civil Procedure Rules, where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”

12. In Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd & 2 Others[2016] eKLR, where the Court expressed itself:-“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right...Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.”

13. Additionally, Steven Mason & McCathy Tetraut in their article "Interlocutory Injunctions: Practical Considerations have authoritatively stated as follows:-“…In certain circumstances, the court will impose a more restrictive standard and require the moving party to demonstrate that it has a more strong prima facie case. If the injunction will likely end the dispute between the parties, then the court may hold the plaintiff to this higher standard."

14. In this instance, the Court considers that the issue of ownership and legality of the respective conveyancing processes are highly contested. At this stage of disposing the plea for an interlocutory injunction, the court seized of these application does not need to make definitive or conclusive pronouncements on the key issues in the suit. I have also considered the need for a delicate balance of the rights of the parties from a public interest perspective vis a vis a commercial investment perspective. In my opinion, issues of such gravity should be duly heard and determined exhaustively at trial. I have also considered the fact that on 22nd June 2023 pursuant to an application made by the 2nd to 10th Defendants, this court allowed them to proceed with the ongoing construction albeit in line with certain conditions.

15. In view of the foregoing, this Court hereby makes the following disposal orders in respect to the applications dated 13th February 2023 and 24th March 2023:i.That pending the hearing and determination of this suit, the orders issued on 22nd June 2023 shall continue to apply save that there shall be no alienation, selling and transfer of the suit properties.ii.Costs will abide the final determination of the main suit.

16. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JULY 2023. E. K. WABWOTOJUDGE