[2025] KEELC 47 (KLR)

Nyakio (Suing for and on behalf of the Estate of Beatrice Nyakio Mathia also known as Nyakio Mathia - Deceased) v Githunguri Constituency Ranching Company Limited & 6 others (Environment & Land Case E055 of 2023) [2025] KEELC 47 (KLR) (16 January 2025) (Ruling)

Neutral citation: [2025] KEELC 47 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case E055 of 2023

BM Eboso, J

January 16, 2025

Between

Josephat Mathia Nyakio (Suing for and on behalf of the Estate of Beatrice Nyakio Mathia also known as Nyakio Mathia - Deceased)

Plaintiff

and

Githunguri Constituency Ranching Company Limited

1st Defendant

Naomi Wairimu Ndungu

2nd Defendant

Victor W Mucheru

3rd Defendant

Land Registrar Ruiru

4th Defendant

Lucy Njeri Mwai

5th Defendant

Margret Njeri Kuria

6th Defendant

Elizabeth Kuria

7th Defendant

Ruling

1. The plaintiff initiated this suit through a plaint dated 6/6/2023. He subsequently filed an amended plaint dated 17/9/2023 and a further amended plaint dated 18/3/2024. Through the further amended plaint, he seeks: (i) a declaration that the omission and/or deletion of the name of Nyakio Mathias as the original allotee of the suit land was unlawful; (ii) an order directing the 5th defendant to cancel subdivision parcel numbers Ruiru Kiu Block 2/12852 and Ruiru Kiu Block/12855, (iii) a permanent injunction restraining the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th defendants against entering, trespassing on, charging, alienating, using, fencing, sub dividing or selling the suit land, (iv) an order compelling the Land Registrar to cancel the titles issued in the names of the 2nd, 3rd, 4th, 6th, 7th and 8th defendants and register the land in the name of the plaintiff as administrator of the estate of the deceased; and (v) costs of the suit.

2. Together with the original plaint, the plaintiff brought a notice of motion dated 18/10/2023, seeking the following verbatim interlocutory reliefs:1. Spent2. Spent3. That pending the hearing and determination of this application and the main suit an order of temporary injunction be issued restraining the defendant/respondents either acting by themselves, their agents, servants and or agents from evicting the applicant, alienating, advertising for sale, offering for sale, taking possession, leasing, transferring, encroaching and or otherwise disposing off that parcel of land known as Ruiru Kiu Block 2/12852 and Ruiru Kiu Block 2/12855 (subdivisions of Ruiru Kiu block 2/2683).4. That the Honourable court do issue an order of inhibition stopping further dealings registration and transactions over that parcel of land known as Ruiru Kiu block 2/12852 and Ruiru Kiu Block 2/12855 (subdivisions of Ruiru Kiu Block 2/2683) pending hearing and determination of this suit.5. The costs of this application be provided for.

3. The said application dated 18/10/2023 is the subject of this ruling. The application was premised on the grounds set out in the motion and in the plaintiff’s supporting and further affidavits. It was canvassed through written submissions dated 2/2/2024 and further submissions dated 29/2/2024.

4. The case of the plaintiff is that he is the only surviving administrator of the estate of the late Beatrice Nyakio Mathia also known as Nyakio Mathia [referred to in this ruling as “the deceased”]. In or about 1977, the deceased bought from the 1st defendant land parcel Number Ruiru Kiu Block 2/2683 through acquisition of shares in the company. The estate of the deceased later learnt that the 1st defendant had deleted the name of the deceased from its internal records, and had replaced the deceased’s name with those of the 2nd, 4th and 8th defendants.

5. The plaintiff further contends that while following up on a rectification of the records, he learnt that there existed Ruiru CMC E&L Case No. E132 of 2021 in which the 6th defendant was the plaintiff and had sued the 2nd, 3rd, 4th and 5th defendants claiming ownership of the suit land. For this reason, he decided to join all the parties involved in Ruiru CMC E&L Case No. E132 of 2021 as parties to the present suit.

6. The plaintiff contends that unless the orders sought are granted, “there is a real likehood the suit property will be delineated and dealt with otherwise in a manner likely to cause the applicant irreparable damage”

7. The 4th and 7th defendants opposed the application through a replying affidavit dated 15/11/2023, sworn by Victor Wamae Mucheru, and written submissions dated 2/2/2023 filed by M/s Njonjo Okello & Mutero Advocates. The case of the duo is that the 4th defendant purchased the suit land from the previous beneficial and registered proprietor, John Kamau Kinyanjui in 2010. The said John Kamau Kinyanjui transferred the land to the 4th defendant and he [the 4th defendant] was issued with a title. He [the 4th defendant] subsequently caused the suit land to be subdivided into two parcels, Ruiru Kiu Block 2/12854 and 12855. He transferred parcel number 12854 to Margaret Njeri Kuria.

8. The 4th and 7th defendants exhibited: (i) the sale agreement between John Kamau Kinyanjui and the 4th defendant;(ii) title deed in the name of John Kamau Kinyanjui; (iii) title deed in the name of the 4th defendant; and (iv) title deed in the name of Margaret Njeri Kuria. The 4th defendant contended that he was an innocent purchaser for value who had enjoyed quiet and uninterrupted possession of the suit land for 13 years.

9. The duo contended that the plaintiff’s suit was statute-barred under Section 7 of the Limitation of Actions Act. They faulted the plaintiff for excluding the estate of the late John Kamau Kinyanjui and for initiating a fresh suit while aware that there subsisted a prior suit relating to the suit land at the Ruiru Chief Magistrate Court. They urged the court not to grant the interlocutory order, contending that the plaintiff had failed to satisfy the criteria for grant of interlocutory injunctive relief.

10. The court has considered the application, the response to the application, and the parties’ respective submissions. The key question to be determined in this ruling is whether the application dated 18/10/2023 satisfies the criteria for grant of an ordinary interlocutory injunction.

11. The relevant criteria was outlined by the Court of Appeal for East Africa in the case of Gilla Vs Cassman Brown Co. Ltd [1973) 358. First, the applicant is required to demonstrate a prima facie case with a probability of success. Second, the applicant is required to demonstrate that if the interlocutory injunction is declined, he will stand to suffer damage that may not be adequately indemnifiable through an award of damages. Third, if the court has doubt on both or either of the above, the application should be disposed based on the balance of convenience.

12. Further, over the years, our courts have developed an additional principle to the effect that at the stage of disposing the plea for an ordinary interlocutory injunction, the court should not make definitive or conclusive findings or pronouncements on the substantive issues in the dispute. The courts have emphasized that definitive or conclusive pronouncements are to be made after trial or during the final disposal of the suit.

13. Has the plaintiff demonstrated a prima facie case with a probability of success? The court has doubt as to whether the plaintiff’s claim against those who succeeded John Kamau Kinyanjui in title can succeed in the absence of the estate of John Kamau Kinyanjui. The pleadings on record indicate that the plaintiff sued John Kamau Kinyanjui as the 3rd defendant. When the plaintiff learnt that John Kamau Kinyanjui had died, he filed a notice withdrawing the claim against him. At this point, the plaintiff has not joined the estate of John Kamau Kinyanjui as a party to this suit. There is doubt that, without impeaching John Kamau Kinyanjui’s registration and title, the plaintiff can be said to have demonstrated a case capable of impeaching the titles of those who succeeded John Kamau Kinyanjui in title.

14. On the adequacy of damages, this is a land dispute. Our courts have generally taken the view that where a proper case has been established, the right to land should be protected through appropriate interlocutory reliefs pending trial.

15. On the balance of convenience, the plaintiff contends that the deceased has owned the suit land since 1977. The deceased and his estate did not process title to the suit land from 1977 to the time of initiating this suit in 2023. The registrations which the plaintiff is challenging date back to August 1995 when the land register relating to the suit land was opened. The defendants whom the plaintiff seeks to injunct are third and fourth generation title holders. The plaintiff has failed to join the second generation title holder. In the circumstances, the balance of convenience does not favour grant of interlocutory injunctive orders against the current title holders in the absence of their predecessor in title.

16. For the above reasons, the application dated October 18, 2023 is rejected for lack of merit.

17. Lastly, it is clarified that the date for delivery of this ruling was reserved while the Presiding Judge was still stationed at Thika ELC. Effective from January 13, 2025, the Judge was transferred to Meru ELC and Chuka ELC. It is for this reason that this ruling is being rendered virtually at Meru ELC. The relevant original court file shall be returned to Thika ELC forthwith and the Court Registry at Thika ELC shall upload the ruling onto the CTS immediately.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MERU THIS 16TH DAY OF JANUARY, 2025B M EBOSOJUDGEIn the Presence of:Mr. Wachira for the 1st defendantMr. Njonjo for the 4th and 7th defendantCourt assistant – Tupet.