[2024] KEELC 606 (KLR)

Ngaita v County Government of Meru (Environment & Land Case E006 of 2023) [2024] KEELC 606 (KLR) (7 February 2024) (Ruling)

Neutral citation: [2024] KEELC 606 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E006 of 2023

CK Nzili, J

February 7, 2024

Between

Amos Gitau Ngaita

Plaintiff

and

County Government of Meru

Defendant

Ruling

1. The court is asked to issue temporary orders of an injunction barring and restraining the defendant, its agents, servants, or employees from trespassing into, encroaching, remaining, expropriating, wasting, or in any way whatsoever, interfering with title No. Timau Timau/Block/6 (Antu-Ba-Mwitu) 150, pending hearing and determination of this suit. Secondly, the court is asked to issue a mandatory injunction compelling the defendant, his agents, servants, or employees to vacate from the unlawfully expropriated portion of title L.R No. Timau Timau/Block/6 (Antu Ba Mwitu) 150, measuring approximately 0. 0285 ha and for removal all equipment and materials derived from the road works pending the hearing and determination of this suit. Thirdly, if granted, the applicants pray that the O.C.S. Timau police station enforce the orders.

2. The grounds are set on the face of the application and the affidavit in support sworn by Amos Gitau Ngaita on 16. 10. 2023. Briefly, the applicant avers he is the registered owner of the suit land now trespassed into by the defendant in an attempt to expand a public road and without notice to acquire his land or by seeking his consent or through an offer for compensation if it was to compulsorily acquire his land.

3. The applicant further avers the encroachment occurred on 10. 8.2023 when his fence, crops, water pipes and the trees were destroyed, which has continued to date. It is averred that the respondent's bulldozers and tractors brought down the fence and trees, removed the stumps, and disposed of the debris on his land, thus exposing his homestead to security threats.

4. The applicant's efforts to seek an explanation from the Commission on Administrative Justice and the defendant's Department of Road and Infrastructure have been in vain. Eventually, he averred he approached a valuer who came up with a report on the loss and damage.

5. The applicant avers the widening of the road from 6 meters to 9 meters was done without public participation or amending the Registry Index Map, hence slicing off a portion of this land without his consent, authority, and or compensation, and in total breach of his right to protection of property. The applicant attached copies of his title deed, photographs, letter dated 28. 8.2023 to Commission for Administrative Justice, response dated 8. 9.2023, and a valuation report as annexures marked AGN 1-5, respectively.

6. When this matter came under certificate of urgency on 16. 10. 2023, the court declined to issue exparte orders in the first instance and directed service of summons and the application upon the defendant, for inter-partes hearing on 31. 10. 2023. The defendant was served on 23. 10. 2023, and a return of service was filed on 31. 10. 2023.

7. The burden in law is on the applicant to meet the threshold for the grant of temporary and mandatory injunction. The applicant has to establish a prima facie case with a probability of success, that there will be irreparable loss and damage, and that the balance of convenience tilts in favor of granting the order sought. See Giella vs Cassman Brown (1973) E.A 358.

8. In Mrao Ltd vs First American Bank & another (2003) eKLR, a prima facie case was defined as established where, looking at the material before the court, a legal right has been infringed by the respondent to call for rebuttal or explanation from the latter. In Nguruman Ltd vs Jan Bonde Nielsen & others (2014) eKLR the court said the three pillars or conditions must be applied separately, distinctly, logically, and surmounted sequentially.

9. In Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR, the court said irreparable injury means injury that cannot be adequately compensated in damages or with no other remedy. Further, the court said the balance of convenience means the inconvenience caused to the plaintiff would be greater than that which the defendants would cause if an injunction is granted, but the suit is ultimately dismissed as opposed to if the injunction is not granted and the suit was ultimately decided in favor of the plaintiff.

10. In Robert Mugo wa Karanja vs Eco Bank (K) Ltd & another (2019) eKLR, the court observed that an applicant has to prove the property in dispute was in danger of being wasted, damaged, alienated, threatened with disposal or removal. Further, in Kenleb Cons Ltd vs New Gatitu Service Station (1990) eKLR, the court said an applicant must make a full and frank disclosure of all relevant facts to the just determination of the application, including showing that he has a right legal or equitable which require protection by an injunction.

11. Regarding mandatory injunction, the law is that a mandatory injunction is not granted at the interlocutory stage unless in exceptional circumstances. In Ramadhan Salim vs Evans M. Maabi t/a Murphy Auctioneers & another (2016) eKLR, the court cited with approval New Ocean Transport Ltd & another vs Anwar Mohamed Bayusuf Ltd (2014) eKLR, that a positive injunction would direct a party to do something or undo a wrongful act to restore the status quo ante, so that the damage does not continue and or compel a person to carry out some positive act to remedy a wrongful omission.

12. In Joseph Kaloki t/a Royal Family Assembly vs. Nancy Atieno Ouma (2020) eKLR, the court re-affirmed Kenya Breweries Ltd & another vs Washington O Okeyo (2002) eKLR, that a mandatory injunction should not usually be granted in the absence of exceptional circumstances where a case is clear. Further, in Sheriff Abdi Hassan vs Nadhif Jama Adan (2006) eKLR, it was said courts are reluctant to grant mandatory injunctions unless against whom it is sought was on the wrong and there was a need to mete out justice without necessarily waiting for full hearing of the entire case.

13. What, then, are exceptional circumstances to be considered in granting a mandatory injunction? In Mucuha vs Ripples Ltd (1993) eKLR, the court emphasized that a court should not assist a party to retain a position of advantage obtained through a planned act of contemptuous disregard of the law of the land. Additionally, in Lucy Wangui Gachara vs Minudi Okemba Lore (2015), the court said there must be a solid and clear case for the need to restore the status quo, which, if not granted, would establish a new state of things different from the state which existed at the date when the suit was instituted.

14. In the instant suit, the plaintiff complains about the encroachment of his parcel of land by the defendant. The alleged acts of trespass occurred on 10. 8.2023. The intervention by the plaintiff was taken on 20. 8.2023 when he wrote a letter to the C.A.J. He did not say when he went to the defendant's Department of Roads and Infrastructure to complain. There is no indication if the plaintiff wrote a demand letter to the defendant other than the letter to the C.AJ. The damage to the plaintiff has been quantified at Kshs.2,130,000/=. The land surveyor reports has indicated that the road was expanded approximately by 0. 3077 ha.

15. The first port of call for the applicant should have been Section 9 of the Public Road and Roads of Access Act to establish the size and width of the access road. There is no report from the roads, engineer, or physical planner regarding the boundaries of or beacon of the access road vis the plaintiff's land. The District Land Surveyor and the Land Registrar are the technical advisors on boundaries. See estate Sonrisa Ltd & another vs Samuel Kamau Macharia & others (2020) eKLR.

16. The applicant failed to object with the board under Section 9 of the Public Road and Roads of Access Act, give a notice under Section 67 (a) of the Kenya Roads Act, Part (xi) of the County Government Act, and the Urban Areas and Cities Act, before moving to court. See John Kibor Kipkorir vs Kenya Rural Road Authority (2018) eKLR, Simonash Investment Ltd vs Kenya National Highway Authority & others (2019) eKLR and Priscilla Ndunge Kiilu vs Machakos County Government & others (2021) eKLR.

17. In the absence of a clear report on the dimensions of the access road, its classification, clarity on whether the defendant is the one who undertook the alleged encroachment acts, and whether the access road is 6 meters or 9 meters, coupled with delay in moving to court, I find the application lacking merits. See Dellian Langata Ltd vs Symon Thuo Muhia & others (2018) eKLR. The same is dismissed with costs.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 7TH DAY OF FEBRUARY 2024In presence ofC.A KananuChweya for applicantHON. CK NZILIJUDGE