[2023] KEELC 18350 (KLR)

Odhiambo v Apoko also Known as Ringtone (Environment & Land Case E135 of 2023) [2023] KEELC 18350 (KLR) (27 June 2023) (Ruling)

Neutral citation: [2023] KEELC 18350 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E135 of 2023

EK Wabwoto, J

June 27, 2023

Between

Teresiah Adhiambo Odhiambo

Plaintiff

and

Alex Apoko also Known as Ringtone

Defendant

Ruling

1. The plaintiff filed a notice of motion application dated April 5, 2023 which was accompanied by a supporting affidavit sworn by Teresiah Adhiambo Odhiambo. Theplaintiff sought the following orders:i.Spent.ii.That pending the hearing and determination of this application, a temporary injunction be issued restraining the defendant/respondent, his servants, agents, or anyone claiming under him from entering, re-entering, interfering and/or in any manner whatsoever dealing with all that property known as Title No. Nairobi/Block 99/142. iii.That pending the hearing and determination of this suit, a temporary injunction be issued restraining the defendant/respondent , his servants, agents, or anyone claiming under him from entering, re-entering, interfering and/or in any manner whatsoever dealing with all that property known as Title No. Nairobi/Block 99/142. iv.That prayer no 2. above, be granted pending the inter partes hearing of this Application.v.That the costs of this application be borne by the defendant/respondent

2. The Application was premised on the following grounds:i.Theplaintiff/applicant is the absolute proprietor of all that property known as Title No Nairobi/Block/99/142. ii.That on or about February 22, 2023approximately 20 of the defendant’s hired thugs and goons in motorcycle armed with rungus and pangas descended upon the suit property and embarked on violent eviction of theplaintiff’s security team and construction workers.iii.The defendant has persisted in its unlawful acts of dispossessing the Plaintiff from her property by sending, harassing and threatening messages to members of the plaintiff’s family.iv.No prejudice whatsoever will be occasioned to the defendant, who is a trespasser.

3. The defendant filed grounds of opposition dated April 20, 2023 seeking the application be struck out or dismissed with costs on the following grounds:i.The affidavit of the applicant is spewed with innuendos and falsehoods which cannot be taken as truth on face value without being tested by cross-examination and or controverted.ii.Copies of documents annexed by the applicant in support of his application are all hearsay evidence offending section 35 of the Evidence Act.iii.The orders sought are untenable at this stage as they amount to eviction orders and have the implication of interfering with the defendant’s rightful occupation and ownership of his property without a demonstrated cause of actioniv.The Application is incurably incompetent, scandalous, frivolous and an abuse of the court process as it in anchored on unsubstantiated claims, innuendos, conjectures and self-conflicting facts and narratives.

4. On April 27, 2023, the court granted temporary reliefs under prayer 2, ordered the Respondent to file reply within 14 days and fixed the matter for hearing of the application on June 20, 2023.

5. During the plenary hearing of the application, Learned Counsel for theplaintiff/applicant Mr. Mbaluto submitted that there was no contestation as to the facts since the respondent had only filed grounds of opposition. He urged the court to grant the prayers sought. Learned Counsel for therespondent Mr. Karanja informed the court that the respondent was not in the suit property and he had no interest in the same. He urged the court to struck out the application.

6. I have considered the application, rival affidavits and oral submissions made by counsel for the parties and the issue that arise for determination is whether the application dated April 5, 2023is merited.

7. It is a well understood principle that interlocutory applications offer an initial shield in the protection of the parties’ rights and thus ought to be determined on face value and decided on a scale of a balance of convenience. This court is guided by section 63 of the Civil Procedure Act and Order 40(1) of the Civil Procedure Rules, where in any suit it is proved by affidavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.

8. Giella v Cassman Brown (1973) EA 358 and Nguruman LimitedvJan Bonde Nielsen & 2others, CA No 77 Of 2012, set out the principles to determine the threshold for temporary injunction in that a party seeking a temporary injunction has to establish a prima facie case, whether the party seeking injunction will suffer irreparable damage if injunction is denied, and in case of doubt the issue in contention ought to be decided on the scale of a balance of convenience.

9. In Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2others [2016] eKLR, where the court expressed itself:-“Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right...Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.”

10. In the instant case, the Plaintiff provided several documents in her favour including; A Certificate of Lease for the suit property in her name, receipt payments addressed to her for utilities of water and electricity, rate receipts for payments effected by her in 2011, 2012, 2014, 2018. On the other hand, the defendant only filed grounds of opposition and did not present any evidence to support their case, therefore the Court deems their grounds as mere averments.

11. In the foregoing, this courtreiterates that it has considered all the above and it is evident that the plaintiff/applicant has proven a likelihood to suffer great harm and should therefore be granted the orders sought.

12. In conclusion, I find merit in the application dated April 5, 2023and the same is hereby allowed in terms of prayer 3. Costs of the application to abide the final determination of the main suit.

13. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE 2023. E. K. WABWOTOJUDGEIn the presence of: -Ms. Mwangi for the Plaintiff/Applicant.Mr. Karanja for the Defendant/Respondent.Court Assistant; Caroline Nafuna.