[2023] KEELC 16243 (KLR)

Njache v Ole Lotapash (Environment & Land Case 326 of 2017) [2023] KEELC 16243 (KLR) (9 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16243 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyahururu

Environment & Land Case 326 of 2017

YM Angima, J

March 9, 2023

Between

Humphrey Mbugua Njache

Plaintiff

and

Sitonik Ole Lotapash

Defendant

Ruling

A. The Plaintiff’s Application 1. By a notice of motion dated 19. 07. 2022 expressed to be based upon Order 40 rules 1(a), 2(1), 3(3) and 4(1) and Order 50 Rule 1 of the Civil Procedure Rules, 2010, Sections 63(1) 8(e), 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and all other enabling provisions of the law, the Plaintiff sought the following interim orders:a.Spent;b.That pending hearing and determination of this suit a temporary injunction do issue restraining the Defendant/Respondent by himself, his servants, employees, workmen, agents, heirs, personal representatives or otherwise howsoever from selling, leasing, charging, pledging, offering the title thereof as lien or any form of security, evicting, developing, demolishing, conveyance, transfer, arbitrary registration or in any other manner interfering with the property known as Title Laikipia/Marmanet/4563 (hereinafter referred to as “the property”).c.That the Defendant/Respondent be restrained by way of a temporary injunction by himself, his servants, employees, workmen, agents, heirs, personal representatives or otherwise howsoever from entering, trespassing, fencing, developing, subdividing or in any other way interfering with the Plaintiff’s/Applicant’s peaceful and quiet possession of all that parcel of land known as Laikipia/Marmanet/4563 pending hearing and determination of the suit.d.That the County Government of Laikipia be ordered not to grant any approvals relating to any developments on the property known as Title number Laikipia/Marmanet/4563 pending hearing and determination of the application and suit.e.That the Marmanent Police Station to ensure compliance with the orders and that peace prevails.f.Costs of this application is provided for.g.Any other further relief that this Honourable Court may deem fit and just to grant.

2. The application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by the Plaintiff on 19. 07. 2022 and the exhibits thereto. The Plaintiff contended that he had been in continuous and exclusive possession of the suit property for a period exceeding 19 years. He contended that the Defendant intended to sub-divide the suit property and commence construction thereon to his detriment. He asserted that he had a prima facie case with overwhelming chances of success and that it would be just to grant him the orders sought.

3. The Plaintiff asserted that he had heavily invested his time and money in the suit property as a farmer and planted trees thereon which were mature for harvesting. The Plaintiff further asserted that the Defendant had already commenced construction on the suit property and that he might alienate the suit property with a view to defeating his interest therein.

4. The Plaintiff contended that he came into occupation of the suit property upon purchasing it for valuable consideration in 2003 from one, Olekis Ole Katero who died in 2010 before he could transfer the said parcel of land to him. It was his contention that neither the vendor nor the Defendant had taken legal action to evict him from the suit property for over 19 years hence he had acquired the suit property through adverse possession.

B. The Defendant’s Response 5. The Defendant filed a replying affidavit sworn on 30. 09. 2022 in opposition to the application. He asserted that he was the registered proprietor of the suit property and that he had been in occupation thereof since its acquisition. He denied that the Plaintiff had ever been in occupation thereof as alleged or at all. He stated that upon acquisition thereof he subdivided it into two parcels being parcel Nos. 4909 and 4910 which were then registered in his name. He exhibited a copy of a letter dated 28. 09. 2022 from the chief of Sironi Location indicating the developments on Parcel 4563 belonged to the Defendant.

6. The Defendant denied knowledge of the alleged sale agreement between the Plaintiff and Olekis Ole Katero and stated that the latter had never owned the suit property in the first place. The Defendant maintained that he had lived and worked on the suit property since 2015 and exhibited copies of photographs which he claimed depicted his developments on the land.

C. Directions on Submissions 7. When the application was listed for inter partes hearing it was directed that it shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their submissions. However, by the time of preparation of the ruling none of the parties had filed their submissions.

D. The Issues for Determination 8. The court has considered the Plaintiff’s application as well as the Defendant’s replying affidavit in opposition thereto. The court is of the opinion that the following issues arise for determination herein:a.Whether the Plaintiff has made out a case for the grant of the interim injunctions sought.b.Whether the County Government of Laikipia should be prevented from granting development approvals.c.Who shall bear costs of the application.

E. Analysis and Determination (a).Whether the Plaintiff has made out a case for the grant of the interim injunctions sought9. The principles for the grant of an injunction were summarized in the case of Giella v Cassman Brown & Co. Ltd [1973] EA 358 as follows:a.First, an applicant must demonstrate a prima facie case with a probability of success at the trial.b.Second, an injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which cannot be adequately compensated by an award of damages.c.Third, if the court is in doubt on the second principle it shall determine the matter on a balance of convenience.10. What constitutes a prima facie case was considered in the case of Mrao Limited v First American Bank [2003] KLR 125 as material which would lead a reasonable tribunal properly directing itself to conclude that the applicant’s legal rights have apparently been violated so as to call for a rebuttal from the respondent. The court has noted from the material on record that although the Plaintiff claimed to have been in occupation of the suit property for over 19 years there was no credible evidence to demonstrate what developments, if any, he had undertaken on the suit property. There was no credible evidence to demonstrate that the trees on the suit property were planted by the Plaintiff. In fact, the letter from the chief of Sironi Location stated that the developments on the suit property belonged to the Defendant.11. There was no evidence of the Plaintiff’s structures or crops on the suit property. It is not easy for one to demonstrate ownership of trees growing on a parcel of land unlike houses, crops, or animals. The court is thus not satisfied on the basis of the material on record that the Plaintiff has demonstrated a prima facie case with a probability of success.12. Even if the court were to consider the second principle on irreparable loss, there is hardly any material on record to demonstrate what irreparable loss, if any, the Plaintiff shall suffer in the absence of an injunction. There is also no evidence on record to demonstrate that whatever loss the Plaintiff stands to suffer cannot be compensated by an award of damages. There is no evidence to demonstrate that whatever structures the Defendant intends to put up cannot be demolished should the Plaintiff’s suit ultimately succeed.13. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal considered the principle of irreparable loss as follows:“On the second factor, that the Applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the Applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the Applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”14. According to paragraph 11 of the Plaintiff’s supporting affidavit he had invested time and money on the suit property and planted trees which were mature for harvesting. The court is unable to accept that the Plaintiff’s money, time and trees cannot be adequately compensated by damages. At least, there is no evidence on record to demonstrate that such loss would be irreparable injury within the meaning and intendment of the law.15. The court is also not satisfied that any dealing with, alienation or disposition of the suit property would affect the Plaintiff’s claim for adverse possession. The court is of the opinion that the Plaintiff’s claim for adverse possession is in the nature of a right of prescription which runs with the land irrespective of any change in ownership of the land in question. See Githu v Ndeete [1984] KLR 776 and Wasui v Musumba [2002]1 KLR 396. 16. The court is thus of the opinion that since the Plaintiff has failed to satisfy the first two principles for the grant of an interim injunction, there is no need to consider the third principle on balance of convenience. In the premises, the court finds and holds that the Plaintiff has failed to make out a case for the grant of the interim injunction sought.

b. Whether the County Government of Laikipia should be prevented from granting development approvals17. The court has already found and held that the Plaintiff has failed to satisfy the principles for the grant of the interim injunction sought with respect to the suit property. In the premises, there would be no logical basis for preventing the planning authority from granting any development approvals as it may deem necessary and as may be permitted by the applicable law.

c. Who shall bear Costs of the Application18. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap 21). In the case of Giella v Cassman Brown & Co. Ltd (supra) it was held that the appropriate order to make on costs is for costs in the cause where the application is allowed and costs against the applicant where the application is dismissed. In the premises, the Plaintiff’s application shall be dismissed with costs to the Defendant.

F. Conclusion and Disposal Order 19. The upshot of the foregoing is that the court finds no merit in the Plaintiff’s application for interim orders. Accordingly, the notice of motion dated 19. 09. 2022 is hereby dismissed in its entirety with costs to the Defendant.

Orders accordingly.

RULING DATED AND SIGNED*AT NYAHURURU AND DELIVERED VIA MICROSOFT TEAMS PLATFORM THIS 9TH DAY OF MARCH, 2023. In the presence of:Mr. Kabira Kioni for the PlaintiffMr. Kimani for the DefendantC/A - CarolY. M. ANGIMAJUDGE