[2022] KECPT 156 (KLR)

Musyoka v Muka Mikuu FCS (Tribunal Case 468 of 2020) [2022] KECPT 156 (KLR) (Civ) (17 February 2022) (Ruling)

Neutral citation: [2022] KECPT 156 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 468 of 2020

M Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

James Musyoka

Claimant

and

Muka Mikuu FCS

Respondent

Ruling

1. The Application for determination is dated 21/10/20 and the same is brought under Sec. 76 (2) Co-operative Societies Act Cap 490, Laws of Kenya, Sec 1A, 1B, 3 and 3A of Civil Procedure Act, Order 40 Rule 1 and Order 51 Rule 1 of Civil Procedure Rule 2010 and all other enabling providing of the Law.The Application seeks for Orders;-1)Spent;2)That, this Honourable Court be pleased to issue a preservatory order restraining the Respondent by themselves, their agents, servants, and/or relatives and anybody else off, settling, selling, disposing and/or transferring, and in any way interfering with the subject Plot Number 61, 70, 82, 147, 175, 225, 242, 262, 325 and 350 pending the hearing of the Application herein;3)That, this Honourable court be pleased to issue a preservatory order restraining the Respondents by themselves, their agents, servants, and/or relatives and anybody else acting on their behest from evicting the Applicant herein, allocating, subdividing, curving off, settling, selling, disposing and/or transferring, and in any way interfering with the subject Plot Numbers 61, 70, 82, 147, 175, 225, 242, 262, 325 and 350 pending the hearing of the suit herein;4)That, the costs of this application be borne by the Respondents.The same is premised on grounds on the face of the Application to wit the Applicant avers he lawfully acquired Plot No. 61, 70, 82, 147, 175, 225, 242, 262, 325 and 350 from Respondent in 1996 after making all the required amount. That the Respondent sent their Surveyors and boundaries were drawn.The Applicant then sold part of the Land to get money to develop the remaining parties. The Respondent is now in the process of evicting the Applicant, and is allocating, settling, disposing and transferring Plot No. 61, 70, 82, 147, 175, 225, 242, 262, 325 and 350 in disregard of the Applicant’s interest.It is this in the interest of justice for the Application to be allowed.

2. The Respondent filed their response via a Replying Affidavit dated 8/4/2021.

3. The Applicant’s filed a Further Affidavit sworn on 24/3/21 and filed on 8/4/21 stating the Supporting Affidavit of Peter Mulili the Respondent warrant via Claimant the deponent is not well vested with the facts of how the Applicant acquired the land in question.He further states there is no way he would have access to the official receipts and Beacon Certificates from Respondent if he was not a member and had bought the property.That he had all along been in possession of the plots and it was only until the currents officials came in office, changed the procedures that trouble started.

4. Parties were directed to file Written Submissions and Respondent filed their Submissions dated 16/2/21 on 8/3/21 and Applicant filed their Written Submissions dated 24/3/21 on 8/4/21. The issues for determination are;i.Whether the preservatory orders ought to be granted;ii.Costs.

Issue One Whether the preservatory orders ought to be granted?As we analyze the case and Affidavits we note the Respondent have raised issues which would require attention and for them to be ascertained or proved. Such issues shall not be disclosed herein but be saved for hearing.Question- Does the Applicant have an arguable case?In the case of African Railway Co-operation Ltd –Vs- Netsator Ltd & 6 Others.HCC No. 299 of 2009 (LR) the court when discussing what constitutes an arguable case observed the following,“A good arguable case” was defined by Nestill J in the Niedersachsen (1938) 2 Lucy –Vs- Rep 600 at Page 605 to be.One which is more than barely capable of services argument, but not necessary one which the judge considers would have a berth than 50% chance of success”. 5. In the present case both Applicant and Respondent lay claim over the plots in the subject matter of the suit/Application.The Applicant states he bought them, Respondent deny the same and that Respondent is not even a member of the Respondent which would in turn change the dynamics of the case.

What is the balance of convenience in preservation of the property?There are many unanswered questions which making or giving an order now might be prejudicial to one party.Balance of convenience in this case tilts towards the Applicant.The Principle that governs the exercise of jurisdictions to grant injunctive orders is well settled in Giella –Vs- Cassan Brown(1973) EA 358;i.Prima Facie CaseHas the Claimant/Applicant demonstrated a Prima facie case? The response to this would be in the negative.ii.Irreparable HarmCan the harm or damage be indemnified through an award of damages.In the present case this does not come on clearly as to whether the Applicant’s loss would cause him irreparable herein;iii.Balance of convenienceSince there is a doubt on the limbs I and ii above the same shall be dismissed on a balance of convenience.

6. We thus give the following directions;-i.Applicant restrained from any development on the suit property in whatever way;ii.That, this Honourable court issued a preservatory order restraining the Respondents by themselves, their agents, servants, and/or relatives and anybody else acting on their behest from evicting the Applicant herein, allocating, subdividing, curving off, settling, selling, disposing and/or transferring, and in any way interfering with the subject Plot Numbers 61, 70, 82, 147, 175, 225, 242, 262, 325 and 350 pending the hearing of the suit herein;iii.Matter to be heard in priority, Pre Trial Directions on 13/4/22. Notice to issue to parties.

RULING, PREPARED, READ AND DELIVERED ON VIRTUALLY THIS 17TH DAY OF FEBRUARY, 2022 WITH WHOM, P. GICHUKI AND B. AKUSALA AGREE.Hon. Mjeni Mwatsama Deputy Chairperson Signed 17. 2.2022P. Gichuki Member Signed 17. 2.2022B. Akusala Member Signed 17. 2.2022SignedHon. Mjeni MwatsamaDeputy Chairperson22/2/22.