[2023] KEELC 18728 (KLR)

Musti Investment Ltd & another v Kilonzo & 12 others (Environment & Land Case E018 of 2023) [2023] KEELC 18728 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18728 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case E018 of 2023

A Nyukuri, J

July 5, 2023

Between

Musti Investment Ltd

1st Plaintiff

Julius Matheka Kisingu

2nd Plaintiff

and

Philip Kilonzo

1st Defendant

Dominic Maitha

2nd Defendant

Daniel Mutinda Ndwika

3rd Defendant

Francis Kimani Mumo

4th Defendant

Francis Kavyu

5th Defendant

Dickson Kavua

6th Defendant

Peter Kiilu

7th Defendant

Benard Kaguru

8th Defendant

Jonathan Kitiku

9th Defendant

David Mutiso Musau

10th Defendant

Lawrence M. Nyamai

11th Defendant

Theophilus Muia

12th Defendant

Ndambuki Maleve

13th Defendant

Ruling

Introduction 1. Before court are three applications; namely, the Notice of Motion dated 13th March 2023 filed by the Plaintiffs; the Notice of Motion dated 27th March 2023 filed by the 6th to 13th Defendants; and the Notice of Motion dated 12th May 2023 filed by the 6th to 13th Defendants.

Notice of Motion dated 13th March 2023 2. In the Notice of Motion dated 13th March 2023, the Plaintiffs sought the following orders;a.Spentb.Spentc.Spentd.That this Honourable Court be pleased to issue temporary orders restraining the Defendants, their agents, servants and or any other person acting on their instructions from erecting structures whether temporary or permanent on the suit properties during the pendency of this application and the suit herein.e.That the Honorable court be pleased to issue an order directing the DCI Kyumbi and OCS Kyumbi Police Station and/or officers under their directions to give assistance to the Applicants in enforcing this order.f.That the costs of this application be borne by the Defendants.

3. The application was supported by the grounds on its face as well as the supporting affidavits sworn on 13th March 2023 by Stephen Muturi Ngugi and Julius Matheka Kisingu who are directors of the 1st Plaintiff. It was the Applicants’ case that the 1st Plaintiff is the registered and bonafide proprietor of parcels of land known as Title Numbers LR. Nos. 12498/16, 12498/17, 12498/18, 12498/15 and 12498/19 which it purchased for value and transfer effected in its favour on 24th November 2022. They stated that the 1st Plaintiff took possession of the said parcels which it enjoyed until 7th March 2023 when the Defendants/Respondents accompanied by a large mob of youth carrying crude weapons demolished a permanent perimeter wall erected around the suit properties. That the Defendants threatened the Plaintiffs with dire consequences.

4. The Plaintiffs stated that they engaged the 3rd Defendant who is the CEC for Lands, Machakos County through a letter dated 8th March 2023 and sought to have the demolitions and harassments halted. They stated that when they sought the help of the police, the police were also pelted with stones. He stated that on 12th March 2022, the Defendants accompanied by youths riding on about 30 motor cycles and a van carrying jerry cans of petrol descended on the suit property threatening to burn the Applicant’s house erected on the suit land. That the mob injured the Applicant’s workers on the property.

5. He further deponed that the Defendants’ actions were reported vide OB No. 37/12/03/2023 for trespass and police from Kyumbi Police Station were called to the scene to restore order but the youths engaged them in running battles and the police managed to recover from the assailants’ arrows, machetes, a van and motor cycle which were placed in police custody.

6. The Applicants stated that the 1st and 2nd Defendants/Respondents are members of the County Assembly representing Kananie/Mathatani and Syokimau/Mlolongo Ward respectively. They complained that the Defendants were using their political influence and the youth to disrupt order and use force and violence to violate the rights of the Plaintiffs protected under Article 40 of theConstitution of Kenya, 2010. Further that if the orders sought are not granted, the Respondents will remain on the suit properties as squatters and continue to interfere with the Plaintiffs’ proprietary rights which cannot be compensated by an award of damages. They attached certificates of title, photographs of the suit property, letter dated 8th March 2023, OB Number and medical chits.

7. The application was opposed. Peter Kiilu the 7th Defendant filed a replying affidavit sworn on 6th April 2023, on his own behalf and on behalf of the other Respondents. It was the Respondents’ case that the Applicants fraudulently subdivided parcels LR. NO. 12498/12 (Original No. 12498/2/2, to have LR. No. 12498/12, LR. NO. 12498/14, 12498/27 and 12498/30. Further that the Respondents have settled on the suit property continuously and without interference from the Plaintiffs for over 15 years being in actual, open, and physical possession thereof. He stated that it was shocking that the 2nd Plaintiff acquired titles of the suit property in 1982 while there is a pending suit where he is seeking ownership of the suit property by adverse possession vide Machakos ELC No. 16 of 2021 (OS). He stated that he had entered a Memorandum of Understanding with the 2nd Plaintiff to file suit against the registered owners of the suit property namely, Mathatani Limited for adverse possession. He maintained that the Applicants had placed guards on the suit property while aware that the Defendants were joint owners with them. He stated that he was apprehensive that the Applicants may take over the property.

8. The Respondents stated that they were not party to the demolitions stated by the Applicants but that it is the County Government of Machakos that effected the demolition of the fence. He stated that they were apprehensive that the Respondents may be assaulted. He attached copies of the pleadings in Machakos ELC (OS) 16 of 2021, Memorandum of Understanding dated 2nd March 2021 and medical reports dated 12th March 2023.

9. In a rejoinder Stephen Muturi Ngugi filed a further affidavit sworn on 12th Mary 2023. He stated that on 11th May 2023, the 1st Respondent in the company of unknown person tried to forcefully access the suit property but that they fled after threatening to attack the Plaintiffs.

Notice of Motion dated 27th March 2023 10. In the Notice of Motion dated 27th March 2023, the 6th to 13th Defendants sought the following orders;a.Spentb.That this Honourable Court do grant orders of status quo to the Plaintiffs/Respondents from trespassing on all that land known as LR. No. 12498/4 Original No. 12498/2/2 purportedly subdivided to have LR. No. 12498/12, LR. No. 12498/14, 12498/26, 12498/27 and 12498/30. c.That this Honourable court do vacate and/or set aside orders issued on 13th March 2023 to the 6th and 7th Defendants/Applicants restraining them from interfering with all that land parcel known as LR. No. 12498/4 Original No. 12498/2/2 fraudulently subdivided to have LR. No. 12498/12, LR. NO. 12498/14, 12498/26, 12498/27 and 12498/30. d.That this Honourable court do issue an order striking the suit for sub judice as there is another suit Machakos ELC (OS) E16 of 2021 pending before ELC Court 2 for hearing and determination of adverse possession over the subject suit.e.That this Honourable court do grant an order restraining the Plaintiffs, its agents or servants from evicting the Applicant or in any other way alienating the suit property.f.That costs of this application be provided for.

11. The application is anchored on the grounds on its face and the affidavit in support thereof sworn by Peter Kiilu the 7th Defendant on 27th March 2023. The Applicant’s case is that the 6th to 13th Defendants have settled continuously for 15 years without the Plaintiff’s interference on all that land known as LR. No. 12498/4 Original No. 12498/2/2 and fraudulently subdivided to have LR. No. 12498/12, LR. No. 12498/14, 12498/26, 12498/27 and 12498/30 (suit property). That recently the County Government demolished the perimeter fence put up by the 1st Plaintiff.

12. According to the Applicants, it was surprising that the 2nd Plaintiff filed this suit despite a similar suit pending before a court of equal status to this court. He stated that the 2nd Plaintiff herein was the 3rd Plaintiff in Machakos ELC 16 of 2021 (OS). He stated that he was surprised that the 2nd Plaintiff had obtained titles to the suit property despite the fact that there was a Memorandum of Understanding with the 6th and 7th Defendants on behalf of several joint owners to pursue a suit against the registered owners thereof, namely Mathatani Limited for adverse possession having occupied the suit property over 15 years. He stated that the Plaintiffs had erected a fence on the suit property illegally and threatened to evict the Applicants and that they were apprehensive of being assaulted.

13. The Applicants maintained that the exparte orders issued herein were obtained in concealment of material facts as the Plaintiffs failed to disclose that there was already a pending suit. He stated that this suit was therefore sub judice and ought to be struck out. That they were apprehensive that the Plaintiffs will take over the suit property on which they had placed IM Security Limited to watch yet that the property belongs to the Applicants who have no access to it.

14. Mr. Peter Kiilu deposed that besides striking out the suit, the court should set aside the orders issued on 13th March 2021 and order for maintenance of status quo so that there is no further dealing with the suit property pending hearing and determination of this suit. He stated that the Plaintiffs had ejected the Applicants and demolished existing structures. He attached the Originating Summons filed in Machakos ELC 16 of 2021 (OS), Memorandum of Understanding dated 2nd March 2021, and medical reports dated 12th March 2023.

15. The application was opposed. Stephen Muturi Ngugi a director of the 1st Plaintiff filed a replying affidavit sworn on 24th April 2023. It was the Respondent’s case that it was not true that the 6th to 13th Defendants had settled on the suit property. He denied the allegation that the perimeter fence was demolished by the County Government of Machakos and averred that it is the 1st to 13th Defendants who had trespassed on the suit property and destroyed the fence.

16. He stated that the 2nd Defendant had been notified of the existence of ELC 16 of 2021 (OS) and that he was dismayed to note that he had been joined to that suit when he had not instructed anyone to do so, and that he filed an affidavit protesting his joinder to that suit. He stated that he could not file suit for adverse possession when he was already the registered proprietor of the suit property. He stated that the 2nd Plaintiff has never signed a Memorandum of Understanding with the Defendants and argued that this suit was not sub judice as the 2nd Plaintiff had been fraudulently jointed to that suit without his knowledge or consent.

17. The Respondent stated that the claim by the 6th to 13th Defendants over the suit property was an attempt by the Plaintiff to subjugate the Plaintiffs’ proprietary rights using support of unruly politicians who have resorted to violence and destruction of property. He maintained that all actions by the Plaintiffs were within their proprietary right. He stated that it is the Defendants who destroyed the fence on the suit property, and injured the 1st Plaintiff’s employees. According to the Respondent, the application above was anchored on an elaborate scheme supported by a narrative of adverse possession and forged documents.

Notice of Motion dated 12th May 2023 18. In the Notice of Motion dated 12th May 2023, the 6th to 13th Defendants sought the following orders;a.Spentb.This Honourable court be pleased to issue an order of temporary injunction restraining the Respondents, their employees, agents, servants and whomsoever jointly and severally from selling, transferring, disposing, sub-dividing, entering into, or in any other way interfering with the suit parcels LR No. 12498/12, LR. No. 12498/14, 12498/26, 12498/27, 12498/30 being the resultant titles from the original suit parcel number 12498/4 Original No. 12498/2/2 pending the hearing and determination of this application and suit.c.This Honourable court be pleased to issue an order of status quo specific to restraining the respondents, their employees, agents, servants and whomsoever jointly and severally from selling, transferring, disposing, sub-dividing, entering into, or in any other way interfering with the suit Parcels LR No. 12498/12, 12498/14, 12498/26, 12498/27, 12498/30 being the resultant titles from the original suit parcel number LR. No. 12498/4 original no. 12498/2/2 pending the hearing and determination of this application and suit.d.An order for the arrest and committal to prison of the Respondents, Christopher Mutuku and Joseph Musau for wilful disobedience of the orders issued on 27th April 2023 by this Honourable Court that status quo be maintained over the suit parcels without any manner of interference and/or development pending the hearing and determination of this suit.e.An order directing the Officer Commanding Kyumbi Police Station to provide peace and security and enforce strict compliance with the orders issued on 27th April 2023 by this Honourable court.f.An order directing that Langley Security Group be placed on site to provide Twenty Four Hours (24hrs) security over the land pending determination and hearing of the entire suit.g.An order that the costs of the contempt proceedings be borne by the Respondents.h.Any other further order that this Honourable Court may deem fit to grant.

19. The application is supported by the grounds on its face and the supporting affidavit sworn on 12th May 2023 by Peter Kiilu the 7th Defendant. The Applicants’ case is that the Defendants/Applicants have settled on the suit property continuously, openly and without interruption for a period of over 15 years. Further that the Plaintiffs have created an imaginary dispute between themselves and the Defendants over the suit property as there exists another suit namely Machakos ELC (OS) 16 of 2021 seeking similar orders and where the 2nd Plaintiff is party thereto as a Plaintiff.

20. He deponed that on 28th March 2023 and 27th April 2023, this Honourable Court ordered that neither party should fence the suit property or do any developments thereon. He stated that on several occasions being 20th February 2023 and 14th April 2023, the Respondents had been running advertisements for sale and that the Applicant is apprehensive that the titles emanating from the fraudulent subdivision of LR. No. 12498/4 (Original No. 12498/2/2) are up for sale to third parties without due regard to the orders of this court issued on 28th March 2023 and 27th April 2023 and that the 6th to 13th suit will be rendered nugatory and the substratum of the suit will be destroyed whereof the Applicant will suffer irreparable loss.

21. He also averred that on 10th and 11th May 2023, the Respondents were seen erecting fences on the suit property in blatant disregard of the orders of 28th March 2023 and 27th April 2023. He maintained that court orders are to be obeyed so as to protect the sanctity of the court and that the Respondent should be found culpable, arrested and imprisoned. He attached a copy of the court’s order of 27th April 2023, a copy of the website print of the Plaintiff, and photographs of the suit property.

22. The application was opposed. Stephen Muturi Ngugi filed a replying affidavit sworn on 25th May 2023. He stated that he relied on his supporting affidavit dated 13th March 2023 as a response to the above application. He stated that the application herein was an abuse of the court process and meant to mislead this Honourable Court as this court did not and has not given any orders of status quo and that the orders made on 28th March 2023 have no directions on status quo. He stated that the Plaintiffs have not been in disobedience of the court order and that it is the Defendants who are the contemnors. He stated that the application was defective and had no basis in law. Further that orders of security already exist. He attached his supporting affidavits sworn on 13th March 2023 and 8th March 2023.

Analysis and Determination 23. I have carefully considered the applications and their respective responses. Both parties have sought, pending the determination of the suit, orders of injunction. Besides, the 6th to 13th Defendants have sought orders of maintenance of status quo restraining the Plaintiffs from the suit property; that the orders issued on 13th March 2023 be vacated; that the suit be struck out for being sub judice; arrest and committal of Christopher Mutuku and Joseph Musau for disobedience of orders issued on 27th April 2023; provision of security by the OCS Kyumbi Police Station to enforce orders issued on 27th April 2023; and an order directing Langley Security Group to be placed on the suit property to provide 24 hour security.

24. Section 6 of the Civil Procedure Rules provides for the sub judice doctrine as follows;"No court shall proceed with the trial on any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed."

25. Therefore to demonstrate that a matter is sub judice, the Applicant must show that the issue in the previously instituted but pending suit is the same issue as that in the subsequently filed suit, which involves the same parties or their privies and which matter is before a court with competent jurisdiction to grant the prayers sought.

26. In the instant application, the 6th to 13th Defendants averred that the 2nd Plaintiff herein is one of the Plaintiffs in Machakos ELC (OS) 16 of 2021. In rebuttal, the 2nd Plaintiff herein concedes that he is named as the 3rd Plaintiff in the said previously instituted suit, but that his name was included in that suit without his knowledge, consent or instructions. I have perused the attached pleadings of Machakos ELC OS 16 of 2021 and I note that the affidavit in support of the Originating Summons was sworn by one Peter Muendo Kiilu who is the 7th Defendant herein and who deponed that he had authority from among, others the 2nd Plaintiff herein to swear that affidavit. However, there is no attached authority for him to plead or swear on behalf of the 2nd Plaintiff and therefore I agree with the 2nd Plaintiff herein that his inclusion in Machakos ELC (OS) 16 of 2021 was without his consent, knowledge or instructions which means that he has not filed any claim or sought any relief in ELC 16 of 2021.

27. In addition, in Machakos ELC (OS) 16 of 2021, the prayer sought is a claim for adverse possession, however in this case it is a claim of land ownership, where the 1st Plaintiff herein is alleged to be the registered proprietor of the suit property and not a party to Machakos ELC (OS) 16 of 2021. It is therefore my finding that the parties in Machakos ELC (OS) 16 of 2021 are not the same parties as the parties in this matter as the Plaintiffs herein are not the Plaintiffs in that suit.

28. Moreover, the matter in issue in Machakos ELC (OS) 16 of 2021 is the question of adverse possession, while in this case, the Plaintiffs have sought for ownership and allege trespass on the part of the Defendants. Although in their replying affidavit the Defendants have alleged a claim on the suit property by adverse possession, no defence and counterclaim has been filed to set out the claim if any. In that regard therefore, it is my finding that the issues in Machakos ELC (OS) 16 of 2021 are different from the issues in this case. That being the case, although the two suits have been filed before the court with jurisdiction to determine the issues raised, I find and hold that as the parties and the issues in Machakos ELC (OS) 16 of 2021 are different from the parties and the issues in this case, then this matter is not sub judice.

29. On the question of temporary injunction, Order 40 Rule 1 of the Civil Procedure Rules provides for the power of this court to grant temporary injunction where in any suit it is demonstrated that the property in dispute is in danger of being wasted, damaged, alienated, wrongfully sold in execution of a decree, or where the Defendant intends to remove or dispose the property in circumstances that will obstruct that may be made against the Defendant.

30. Principles for grant of temporary injunction are well settled. The Applicant must demonstrate;a.A prima facie case with chances of success;b.That the Applicant stands to suffer irreparable injury that may not be compensated in damages, if the injunction is not granted.c.Where the court is in doubt, it ought to decide the application on a balance of convenience.

31. In the case of Nguruman Limited v. Jan Bonde Nielsen & 2 Others CA No. 77 of 2012 [2014] eKLR, the Court of Appeal held as follows;"in an interlocutory application, the Applicant has to satisfy the triple requirements to(a)establishes his case only at a prima facie level,(b)demonstrates irreparable injury if a temporary injunction is not granted and(c)allay any doubts as to (b) by showing that the balance of convenience is in his favour.These are the three pillars on which vest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially."

32. Therefore for an Applicant to obtain a temporary injunction he or she must first show that she or he has a prima facie case with chances of success. A prima facie case was defined by the Court of Appeal in the case of Mrao Ltd v. First American Bank of Kenya Ltd [2003] eKLR as follows;"In civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter."

33. Essentially, a prima facie goes beyond an arguable case as it is a case that apparently shows that the claimant’s rights have been infringed requiring an answer from the Defendant. It therefore follows that any party seeking a temporary injunction must have filed a suit against the party against whom an injunction is sought.

34. Having gone through the record, I note that it is only the Plaintiffs who filed suit against the Defendants herein and no counterclaim was filed by the Defendants. There being no counterclaim by the 6th to 13th Defendants, I find and hold that their prayers of temporary injunction have no foundation as a prima facie case can only be deduced from a claim filed by the Plaintiff or a counterclaim filed by the Defendant. On that basis all the prayers of the Defendant for temporary injunction are unsupported and the same are dismissed.

35. On the question of status quo, the Defendants sought for orders of “status quo specific to restrain the Respondents, their employees, agents, servants and whomever jointly and severally from selling, transferring, disposing, subdividing, entering into or interfering with” the suit property. The Black’s Law Dictionary, 11th Edition defines “status quo” as the situation that currently exists. Therefore orders of status quo are orders that maintain the state of affairs as they are presently. In my view therefore, a court can either grant orders of maintenance of status quo or an injunction restraining the Defendant from doing actions complained about and not both at the same time in the same matter. This is because status quo seeks to keep things as they are, but a restraining injunction prohibits the continued commission of ongoing actions. In the premises, as the Defendants framed their prayers as orders of “status quo restraining the Respondents”, that prayer as sought cannot be granted.

36. On whether there was contempt, the 6th to 13th Defendants averred that Christopher Mutuku and Joseph Musau ought to be found to have willfully disobeyed orders of this court issued on 27th April 2023. Having perused the court record, I note that on 27th April 2023, this court extended orders of 28th March 2023 pending determination of applications dated 27th March 2023 and 13th March 2023. The orders made on 28 March 2023 were as follows;a.That pending the hearing and determination of the application dated 13th March 2023 interpartes, this court be and is hereby pleased to issue orders of temporary injunction against the Defendants, their agents, servants, and or any other persons acting on their behalf restraining them from further removing, demolishing, carrying away fencing material used in and around land parcel Nos. 12498/71, 12498/72, 12498/15, 12498/19, 12498/12 12498/14, 12498/27 and 12498/30. b.That an order is hereby issued directing the Machakos County Police Commandant and the Officer Commanding Station Kyumbi Police Station to secure and protect the suit properties in enforcement of the orders granted above.c.That leave of 14 days is hereby granted to the Respondents to file and serve their response to the application dated 13th March 2023 and the Applicant shall be at liberty to file and serve supplementary affidavit if need be, in 7 days. The Plaintiffs to respond to the application dated 27th March 2023 in 14 days upon service the Defendants are at liberty to file and serve supplementary affidavit in 7 days if any.d.That the applications dated 13th March 2023 and 27th March 2023 shall be heard together interpartes on 27th April 2023. Parties are at liberty to file and serve submissions before that date.

37. Essentially, orders issued on 28th March 2023 were temporary injunction and not orders for maintenance of status quo. The injunction was restraining the Defendants from interfering with the suit property pending hearing of the application dated 13th March 2023. There is no order against the Plaintiffs neither is there an order of status quo as alleged and therefore the prayer for contempt is not proved, and the same is dismissed.

38. The 6th to 13th Defendants also sought for orders directing Langley Security Group to be placed on site to provide 24 hours security over the suit property pending determination of this suit. From the pleadings, I note that Langley Security Group is not a party to this suit, and from the supporting affidavit there is no basis for the orders sought against them. The right to a fair trial enshrined in Article 50 of theConstitution of Kenya 2010 requires that no one should be condemned unheard for that reason it will be against the tenets of justice to issue orders against the said entity without material before court demonstrating that they are interested in offering security on that suit property, therefore that prayer is rejected.

39. As to whether the Plaintiffs are entitled to the temporary injunction orders sought, the Plaintiffs stated that they are the registered proprietors of the suit property which they obtained by purchase. They attached titles to the suit property. In response the 7th Defendant stated that they are the legal and beneficial owners of LR. No. 12498/12 (Original No. 12498/2/2) fraudulently subdivided to give titles of the suit property. He stated that the Respondents had settled on the suit property being in actual open and uninterrupted possession thereof for over 15 years. He also stated that together with the 2nd Plaintiff, they filed Machakos ELC (OS) No. 16 of 2021 seeking to be entitled to the suit property by way of adverse possession. He attached the Originating Summons filed on 26th April 2021, a Memorandum of Understanding dated 2nd March 2021 between Peter Muendo Kiilu, Dickson Mutua Kavua and Julius Matheka Kisingu on one hand and Beacons and Land Solutions Limited on the other hand and medical reports for Dickson Mutua.

40. The Plaintiffs having shown that the suit property is registered in the name of the 1st Plaintiff, and the Defendants having failed to demonstrate a legal right or interest in the suit property, Section 26 of the Land Registration Act provides for the conclusiveness of certificate of title except in certain circumstances as follows;a.on the ground of fraud or misrepresentation to which the person is proved to be a party; orb.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme

41. The Defendants’ allegations in respect of the suit property are based on Adverse Possession. They have never been registered proprietors of the suit property. Even their allegation that the suit property was registered in the name of Mathatani Limited, being the basis of their claim in Machakos ELC (OS) 16 of 2021, is not supported by any evidence as no copy of the register was attached to the Originating Summons or to their replying affidavit to support that claim. I therefore find that there is no claim of fraud demonstrated against the Plaintiffs.

42. As the 1st Plaintiff had demonstrated that he became the registered proprietor of the suit property on 28th September 2021, having a leasehold interest in the suit property, I am satisfied that the Plaintiffs have demonstrated a prima facie case with chances of success.

43. It is not in dispute that both parties have had physical confrontations on the suit property which involved the police.

44. The Plaintiffs have stated that the Defendants are interfering with their proprietary rights as they have demolished the perimeter wall. The Defendants allegations that the wall was demolished by the County Government of Machakos was not demonstrated. In addition, the County Government of Machakos is not a party to these proceedings and none of the parties has suggested that the suit property is either public land or community land in which the County Government of Machakos may have an interest or have a reason to demolish the perimeter wall thereon. The allegation that the 1st and 2nd Defendants are members of the County Assemblies of Machakos County and that the 3rd Defendant is a CEC member for Lands Machakos County has not been disputed. What the Defendants have stated is that all the Defendants claim the suit property by adverse possession, and it is not clear why the involvement of Machakos County Government if any, as they have not sought to be joined to this suit or laid any claim on the suit property. If the suit property is public land or community land, nothing stops the County Government of Machakos from making such disclosures as its officers are party to this suit.

45. That being the case, I agree with the Plaintiffs that they stand to suffer irreparable injury if the orders sought are not granted. As the Plaintiffs have title to the suit property and have possession of the same, it is my view that the balance of convenience tilts in favour of granting the orders sought.

46. In the premises, I find and hold that the Notices of Motion filed by the 6th to 13th Defendants and dated 27th March 2023 and 12th May 2023 lack merit and the same are hereby dismissed with costs. I also find and hold that the Plaintiffs’ Notice of Motion dated 13th March 2023 is merited and I allow the same in the following terms;a.That pending the hearing and determination of this application and the suit, an order be and is hereby issued restraining the Defendants either by themselves or their agents, assigns or proxy from entering, trespassing, encroaching, further demolishing, accessing, threatening the Applicants’ workers in any way or in any other manner dealing with all the lands under Title Nos. 12498/71, 12498/72, 12498/15, 12498/19, 12498/12, 12498/14, 12498/26, 12498/27 and 12498/30. b.That an order be and is hereby issued restraining the Defendants, their agents, servants and or any other person acting on their instructions from erecting structures whether temporary or permanent on the suit properties during the pendency of this suit.c.That an order be and is hereby issued directing the DCI Kyumbi and OCS Kyumbi Police Station and/or officers under their directions to give assistance to the Applicants in enforcing this order.d.Costs of the three applications are awarded to the Plaintiffs.

47. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 5THDAY OF JULY, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the Presence of;Mr. Mutava holding brief for Ms. Kamene for 6th to 13th DefendantsMr. Mutai for 1st and 2nd Plaintiffs/ApplicantsMs. Mbilo holding brief for Mr. Mulu for 6th to 13th DefendantsJosephine – Court Assistant