[2024] KEELC 6888 (KLR)

Mutisya & another (Suing as Legal Administrators of the Estate of James Mutisya Wathome) v Martha Wambua Mutisya & Nathan Muthini Wambua (Sued as the administrators of the Estate of Wambua Mutisya ) & 3 others (Environment & Land Case 38 of 2019) [2024] KEELC 6888 (KLR) (16 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6888 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 38 of 2019

A Nyukuri, J

October 16, 2024

Between

Stephen Waita Mutisya

1st Plaintiff

Bernard Mutuku Mutisya

2nd Plaintiff

Suing as Legal Administrators of the Estate of James Mutisya Wathome

and

Martha Wambua Mutisya & Nathan Muthini Wambua (Sued as the administrators of the Estate of Wambua Mutisya )

1st Defendant

Komarock Ranching and Farming Cooperative Society

2nd Defendant

Land Registrar – Machakos County

3rd Defendant

County Attorney – Machakos County

4th Defendant

Ruling

Introduction 1. Before court is a notice of motion application dated 27th June 2024 filed by the 1st defendant seeking the following orders;a.Spentb.Spentc.That the Honourable Court be pleased to issue a conservatory order of injunction prohibiting the plaintiffs/respondents, their agents, employees, servants and or any other person acting under their instructions from trespassing, digging trenches, dams and or undertaking any other activity in land Parcel Number Donyo Sabuk Komarock Block 1/389 pending the hearing and determination of this suit.d.That the costs of this application be granted to the applicants.

2. The application is supported by the affidavit sworn by Martha Wambua Mutisya. The applicants’ case is that they are the administrators of the estate of Wambua Mutisya the registered proprietor of parcel of land known as Donyo Sabuk Komarock Block 1/389 measuring 40. 52 Hectares. She stated that the plaintiffs had trespassed on the suit property and started digging trenches and dams on the suit property so as to use the same.

3. The application is opposed. The plaintiff/respondent filed grounds of opposition dated 3rd July 2024. He stated that the application is premised on falsehoods and should be struck out. The respondents denied trespassing on the suit property and stated that they have been on the suit property since 1990s long before issuance of the title. They stated that they have developed the suit property by occupying, erecting a farm house, fencing, keeping livestock and cultivating the same for more than 30 years. That the land belonged to their father but was fraudulently registered in the applicants’ father in 1994 and that the respondents have acquired the same by adverse possession. They stated that the applicants had not met the threshold for grant of temporary injunction.

4. The plaintiff further filed a replying affidavit dated 3rd July 2024. He stated that they were not trespassers but had occupied the suit property since 1990. He attached the plaint in support of this averment. He stated that in 1990, they applied for letters of administration for their father and obtained confirmation of grant showing that the suit property is theirs. That they also applied for transfer of the same. According to him, the police investigated the fraud that led to the defendants’ father registration of the suit property and wrote a letter dated 23rd May 2013. He also stated that their occupation, fencing and cultivation of the suit property is evident in their attached photographs. He stated that they dug the water pans in 2009. He stated that the defendants obtained title by fraud and that the plaintiffs have occupied the land and are entitled to the same by adverse possession.

5. The applicant filed supplementary affidavit dated 5th July 2024. She stated that they were the ones in occupation, the land belongs to their late father and the respondents had no right to include it in their deceased father’s succession cause. Regarding the letter by the police, she stated that the police have no jurisdiction to determine land ownership. She stated that the plaintiffs admitted to digging trenches and dams and stated that, that was done recently and not in 2009 as alleged by the plaintiffs. She further stated that the person in the plaintiffs’ photographs is their agent who has been attacking the defendants and that the tractors on site were hired by the plaintiffs to dig trenches there.

6. The application was disposed by way of written submissions. On record are submissions filed by the plaintiffs dated 8th July 2024 and the 1st defendant’s submissions dated 9th July 2024 both of which this court has considered.

Analysis and determination 7. The court has carefully considered the application, response thereto and the rival submissions filed. The only issue that arise for determination is whether the defendant deserves orders of temporary injunction.

8. Order 40 Rule 1 of the Civil Procedure Rules grants this court the jurisdiction to grant interlocutory orders where the applicant demonstrates that the disputed property is in danger of being wasted, damaged or alienated by the other party or the defendant threatens to remove or dispose such property in circumstances that will obstruct or delay execution of the decree that may ultimately be made in favour of the plaintiff.

9. Conditions for grant of temporary injunction are now settled. The applicant for a temporary injunction must demonstrate three elements; (a) that he or she has a prima facie case with chances of success; (b) that if the injunction is not granted, he stands to suffer irreparable injury that may not be compensated in damages, and (c) where the court is in doubt, it ought to determine the application on a balance of convenience.

10. 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 injunction 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 irreparable injunction is not granted and (c) allay any doubts as to (b) by showing that the balance of convenience is in his favour which rest 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.

11. A prima facie case is a case that shows an ostensible violation of the plaintiff’s rights demonstrating an arguable case. In the case of Mrao Ltd v. First American Bank of Kenya Ltd [2003] eKLR the Court of Appeal described a prima facie case as follows;In civil cases, it is a case in which on the material presented to the court a tribunal property 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.

12. In this case, the applicant argues that the plaintiffs are digging trenches on the suit property which belong to their father and that the property would be wasted. Does the applicant have a prima facie case? I have considered the defence filed by the 1st defendant which was amended on 12th January 2023, the same has no counterclaim. Essentially, the 1st defendant has no claim against the plaintiff and therefore, this court cannot exercise its discretion under Order 40 Rule 1 of the Civil Procedure Rules as the 1st defendant is not expected to get a positive decree capable of being executed. The most that the 1st defendant can get is a dismissal of the plaintiffs’ case, and there would be no declaration of anything positive capable of being executed save for costs if awarded. In the premises, the defendant has no prima facie case, upon which a prayer for injunction may be anchored.

13. In the premises, I find no merit in the application dated 27th June 2024 which I dismiss with costs to the plaintiffs.

14. It is so ordered.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 16THDAY OF OCTOBER, 2024 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;Mr. Mbullo for plaintiffs/respondentsMs. Muthoki for 1st defendant/applicantMs. Birundu holding brief for Ms. Wanjiru for Attorney GeneralCourt assistant – Josephine