[2024] KEELC 6579 (KLR)

Pansiba Limited v Nazil alias Abdi & 9 others (Environment & Land Case E194 of 2023) [2024] KEELC 6579 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6579 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E194 of 2023

OA Angote, J

October 3, 2024

Between

Pansiba Limited

Plaintiff

and

Ahmed Nazil alias Abdi

1st Defendant

Midland Investments (Ksm) Limited

2nd Defendant

Prime Bank Limited

3rd Defendant

Palm Oil Transporters Limited

4th Defendant

Diamond Trust Bank Limited

5th Defendant

Stanbic Bank (K) Limited

6th Defendant

Geometric Services Limited

7th Defendant

The Director of Survey Kenya

8th Defendant

The Chief Land Registrar

9th Defendant

The Attorney General

10th Defendant

Ruling

1. There are three applications before this court for determination. The first application was filed by the Plaintiff and is dated 23rd May 2023. The Plaintiff has sought for the following orders:a.That pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order of injunction restraining the Defendants either by themselves of their agents, servants or personal representatives from however transacting, selling, alienating, trespassing onto and or in any other manner whatsoever interfering with or otherwise dealing with the suit property (known as Land Title Number I.R. 209/10846 and 209/10847 now consolidated and amalgamated into Land Parcel Number LR No. 209/16791 measuring 0. 8000 hectares and Land Parcel number I. R. 209/10848 and 209/10849 now consolidated into LR No. 209/16790 measuring 0. 8000Ha).b.That the OCS Embakasi Police Station or the nearest OCS to the nearest police station assists in the enforcement of the aforesaid orders.c.That costs of this application be in the cause.

2. The grounds of this application are articulated on its face and in the Affidavit sworn by Manjit Singh Sethi, the Managing Director of the Plaintiff company, Ruaha Concrete Company Limited, Landmark Holdings Company Limited and Consolidated Timber Company Limited.

3. These grounds are that the 1st, 2nd and 4th Defendants have colluded to fraudulently and unlawfully transfer the Plaintiff’s parcel numbers L.R. No.s 209/10846, 209/10847, 209/10848, 209/10989 to themselves; and that prior to the illegal transfer, the 1st, 2nd and 4th Defendants illegally amalgamated the 4 parcels into two parcel numbers LR 209/16791 measuring 0. 8000Ha and LR No. 209/16790 measuring 0. 8000 Ha and that the Defendants thereafter took loans using the fake certificates of title from the 3rd, 5th and 6th Defendants.

4. The Plaintiff’s Managing Director, Manjit Singh Sethi, deposed that the 1st Defendant is the mastermind of the fraud and has since disappeared; that an award of damages will not suffice; that the damage already committed has cost the Plaintiff a lot of money that they may not be able to recover and that the Plaintiff is unable to use and develop the said parcels of land.

5. It is the Plaintiff’s case that the harms committed against the Plaintiff may be irreversible and will cost the Plaintiff a lot of man hours and money to revert the parcel of land and that it is apprehensive that the 2nd or the 4th Defendants might decide to transfer the suit properties to another party or to take additional loans and in the event of default, the 3rd, 5th and 6th Defendants may auction the suit properties.

6. The 2nd Defendant opposed the application vide a Replying Affidavit dated 2nd July 2024 and sworn by Jayesh Kotecha, the Director of the 2nd Defendant. Mr Kotecha deponed that the 2nd Defendant purchased and obtained good title over LR No. 209/16791 from Salina Transporters Ltd, who had bought it from the 1st Defendant, and that a transfer in the 2nd Defendant’s favor was effected on 13th November 2008.

7. According to the 2nd Defendant’s director, at the time of purchase and transfer of the suit property, the 2nd Defendant had no reason to believe the said property did not belong to the vendor; that it paid valuable consideration for the same; that the allegations of fraud on the 2nd Defendant’s part are misguided; that the amalgamation of plot numbers L.R No. 209/10846 and 209/10847 to give rise to LR No. 209/16791 was done prior to the involvement and/or registration of the transfer of LR 209/16791 to the 2nd Defendant and that it is not true that the 1st and 2nd Defendants colluded to amalgamate the parcels of land.

8. It was deposed by the 2nd Defendant’s director that after the registration of the transfer of the property, the 2nd Defendant took possession and has been in occupation of LR No. 209/16791 since them and that when the Plaintiff came to court, the 2nd Defendant, its licensees and an administrator of its tenant, Midland Hauliers, were in occupation of the suit premises.

9. It is the 2nd Defendant’s case that upon the Plaintiff obtaining interim orders in this suit, the Plaintiff disregarded the court process and has trespassed into the premises using the said orders to evict the 2nd Defendant and took possession of the suit property; that the Plaintiff repainted the gate and buildings in the property, and removed the 2nd Defendant’s property and goods that were on the premises and that it has commenced construction on the property causing severe loss and damage to the 2nd Defendant, its licensees and tenants.

10. According to Rayesh Kotecha, the report of the court’s site visit shows aerial photographs of the suit property which includes a photograph of the property which is marked Midland Investments Limited, which proves the 2nd Defendant’s possession and occupation of the property. He further asserted that the Plaintiffs and its directors have uttered falsehoods on oath which this court must investigate for perjury and punish them for abusing the court process.

11. The 2nd Defendant’s director denied knowledge of the transfer of LR No. 209/16790 to the 4th Defendant. He concluded that the Plaintiff has not proven any irreparable loss likely to be occasioned to it as it was not in occupation of LR No. 209/16791 at the time of filing the suit and only forcefully took possession of the suit property after the fact.

12. The 4th Defendant also opposed the application through a Replying Affidavit dated 13th July 2023 and sworn by Mehari Kefela, Director and Shareholder of the 4th Defendant. Mehari Kefela deponed that this application is frivolous as there is no basis for the Plaintiff to seek orders of injunction against the 4th Defendant and that there is no nexus between the Plaintiff and the 4th Defendant’s property.

13. Mehari Kefela’s deponed that the Plaintiff had deliberately failed to produce the pertinent documents it refers to; that the 4th Defendant lawfully purchased LR No. 209/10848 and LR No. 209/10849 for valuable consideration from the 1st Defendant vide a sale agreement dated 28th October 2005 and two certificates of leases were issued in respect of the properties and that upon acquisition, the 4th Defendant amalgamated them into one title known as LR No. 209/16790 and was issued with a Certificate of Title dated 17th November 2006.

14. It was deposed that the 4th Defendant has been in uninterrupted and peaceful occupation of the suit property from the time it acquired the said property to date; that it has been paying the land rent on the suit property from 2005 to date and that contrary to the Plaintiff’s claim, a provisional title could not have been issued on 27th July 2012 because as at that time, the 4th Defendant already had a title in place.

15. It was deponed that there is no Letter of Allotment produced to support the claim that the properties were first allotted to William Lasoi; that the allegation that title deeds issued to the Plaintiff’s predecessor were lost on 1st July 1997 is logically untenable as the letter dated 1st July 1997 references unsurveyed plot nos. 11, 12, 13 and 18 and not L.R. Nos 209/10848 and LR No. 209/10849; and that the letter dated 1st July 1997 marked MSS-7(b) indicated that the said plots were issued to Ruaha Concrete Company Limited while the Plaintiff in its narrative stated that the plots were issued to Consolidated Timber Limited in 1992.

16. The deponent averred that the Plaintiff has thereby failed to establish a prima facie case to warrant it obtaining any injunctive relief in respect of the subject properties and that the Plaintiff did not acquire a good title capable of protection under the law.

17. The Plaintiff responded to the 4th Defendant through a Further Affidavit dated 28th August 2023. Manjit Singh Sethi asserted that the Plaintiff is well aware that Consolidated Timbers Ltd acquired the properties from Ruaha Concrete Company Limited, the Plaintiff’s sister company and that Ruaha Concrete Company Limited acquired the properties in 1990 from William Lasoi, the original allottee of the properties as per the letter of allotment dated 19th August 1988.

18. According to the Plaintiff, Ruaha Concrete Company paid the balance of the properties and a receipt was issued by the department of lands which was signed by the Commissioner of Lands; that the 4th Defendant has not produced any letters of allotment for its titles and have only brandished the same and that through a letter dated 1st March 2007, the Chief Land Registrar wrote to the Director of Criminal Investigations informing them of the forgery involving title numbers LR Nos 209/10848 and 209/10849.

19. It was deposed by the Plaintiff’s director that the Chief Land Registrar confirmed that the genuine titles are legally registered in the name of Consolidated Timbers Limited. The Plaintiff’s direct or denied that the 4th Defendant’s occupation of the properties has been undisturbed.

20. It was Manjit Singh Sethi’s averment that Consolidated Timbers Limited took possession of the suit property and erected a wall fence on the properties; that they enjoyed quiet possession until 1997, when the 1st Defendant hired goons who forcefully trespassed into the suit properties, leading Consolidated Timbers Ltd to institute Milimani CMCC 8087 of 2005 and that on 24th August 2005, injunction orders were issued restraining the 1st Defendant from dealing with the suit properties.

21. It was deponed that the 1st Defendant in contempt of these orders continued interfering with the properties and the court directed the Commanding Officer Embakasi Police Station to assist in enforcing the orders and that the OCS Embakasi visited the suit properties on 18th January 2006.

22. It is the Plaintiff’s case that Consolidated Timbers Limited through their agent, Heri Properties Limited, wrote to the Permanent Secretary Ministry of lands, informing them of the illegal interference and loss of original titles; that Consolidated Timbers reported the trespass and loss of title to the police and applied for an abstract and that Consolidated Timbers swore an affidavit on the loss of titles, and requested for duplicate titles.

23. The Attorney General, the 10th Defendant, filed two Replying Affidavits in response to the Plaintiff’s application. The first Replying Affidavit is dated 19th September 2023 and is sworn by No. 81446 PC Alex Muinde, the investigation officer in this matter. He asserted that the Directorate of Criminal Investigations (DCI) conducted an inquiry into an alleged offence of forgery and obtaining registration of title to land by false pretense.

24. PC Alex Muinde deponed that the investigating officers of the Land Fraud Investigations Unit (LFIU) visited the site at Kyang’ombe area in Embakasi and recorded the statement of Perminder Singh Sethi and that the investigating officers thereafter wrote a letter to the Principal Secretary Ministry of Lands and Physical Planning dated 13th July 2022 seeking all documents with respect to the suit property including lease documents, transfer documents, consent to transfer, survey card, file register, deed plan/survey maps and documents used during amalgamation.

25. According to the investigation officer, the documents from the Chief Land Registrar revealed that :-a.LR No. 209/10848 was delineated from land survey plan No. 246060 dated 15th November 2001 is registered under the name of Abdirahman Muhumed Abdi for a term of 99 years with effect from 1st July 1998;b.LR No. 209/10849 was delineated from land survey plan no. 256786 dated 21st June 2000 under the name of Abdirahman Muhumed Abdi for 99 years with effect from 1st July 1998;c.On 19th December 2005, Abdirahman Muhumed Abdi transferred the land to a fictitious entity known as Palm Oil Transporters, which amalgamated the two parcels into LR No. 209/16790. d.LR No. 209/10846 delineated from land survey plan No. 152773 dated 31st January 1991 is registered in the name of Consolidated Timbers Limited for a term of 99 years with effect from 1st July 1998;e.LR No. 209/10848 delineated from Land survey plan no. 152771 dated 31st January 1992 is registered in the name of Consolidated Timbers Limited;f.LR No. 209/10849 was delineated from land survey plan no. 152774 dated 17th May 1991 and was registered under the name of Consolidated Timbers Limited.g.Consolidated Timbers Limited had provisional certificates of title issued vide gazette notice No. 1194 dated 16th February 2007.

26. PC. Alex Muinde deponed that the documents from the Director of Surveys indicate that:a.LR. Nos 209/10846,209/10847 and 209/10848 were as a result of a survey done by a government surveyor, which survey was done and approved as FR No. 199/65 and authentication of the survey deed plan Nos 152771-152774 were prepared, sealed and signed in the Plaintiff’s favor;b.Another survey was done by J.D. Obel licensed Surveyor working for Abdirahman Muhumed Abdi that amalgamated LR No. 209/10848 and 209/10849 giving rise to LR No. 209/16790, and also amalgamated LR No. 209/10846 and LR No. 209/10847, resulting in LR No. 209/16791. c.Falsified deed plan Nos 246060 and 256786 were deposited in the survey records purportedly for LR Nos 209/10848 and 209/10849. d.Deed plan No. 246060 belongs to the land parcel LR. No. 26828 (Nairobi Area) while deed plan No. 256786 belongs to land parcel MN/1/13368 (Original No. 9135/3) located within Mombasa Municipality;e.Deed Plan Nos 266335 and 266336 were issued for LR No. 209/16790 and 209/16791 respectively.

27. The deponent asserts that they sent recommendations to the ODPP for the Registrar to expunge all records in support of Abdirahman Muhumed Abdi and Palm Oil Transporters for the land parcel nos. 209/16790 and 209/16791; and that Abdirahman Muhumed Abdi be arrested and be prosecuted for offences of forging an official document contrary to Section 351 of the Penal Code and making a false document contrary to Section 345(a) as read with Section 349 of the Penal Code among others.

28. The second Replying Affidavit was sworn by Omolo Patroba, an Assistant Director Land Administration with the State Department for Lands and Physical Planning in the Ministry of Lands, Public Works, Housing and Urban Development. Mr. Omolo deponed that from the Correspondence File No. 248155 for LR No. 209/10848, the said plot was allocated to A.M. Abdi on 1st July 1998 vide letter of Allotment Ref. No. 51776/XVII, based on F/R No. 179/49.

29. The Assistant Director Land Administration deposed that the offer was accepted through the firm of Wetangula and company Advocates on 7th April, 2004 and payment of Kshs. 99,850 was forwarded and an official receipt dated 21st April 2004 issued; that an indent was issued by the Commissioner of Lands vide a letter dated 26th April 2004; that the Director of Surveys forwarded a Deed Plan No. 246060; that a grant was prepared and executed by the Commissioner of Lands on 23rd June 2004 grant and that the grant was registered in the name of Abdirahman Muhumed Abdi vide a Memorandum of Transfer of Lands dated 23rd June 2004.

30. With respect to Correspondence File No. 190305 for LR. No. 209/10846, Omolo Patroba deponed that vide a Memorandum of Registration of Transfer of Lands dated 10th October 2010, Nimo Ahmed Abi was registered as the grantee of L.R. No. 209/10846 for consideration of Kshs. 80,000 at an annual rent of Kshs. 16,000 per annum.

31. It was deponed that on 10th August 2001, Nimo Ahmed Abi requested for consent to transfer the property, which letter of consent was granted on 11th August 2006 upon payment of Kshs. 250 consent fees and obtaining a land rent clearance certificate. He stated that he was still in the process of tracing further records of LR No. 209/10848 and 209/10849.

32. The 3rd and 6th Defendants respectively filed Preliminary Objections to the application dated 7th July 2023 and 3rd August 2023. The Defendants have respectively asserted that the Plaint is time barred as the cause of action to recover land commenced on 16th July 2005 as asserted in CMCC No. 8087 of 2005 Consolidated Timbers Limited vs Abdorahman Guchamsa Alias, where the Plaintiff’s sister company sought injunctive orders and declarations that it was the owner of the suit properties. They assert that more than 18 years have passed since the cause of action accrued in contravention of Section 7 of the Limitation of Actions Act.

33. The Plaintiff responded to these preliminary objections through a Further Replying Affidavit dated 13th October 2023. In the Further Affidavit, Manjit Singh Sethi deponed that the Plaintiff purchased the suit property from William Lasoi in 1990 and they agreed to sell the land from Ruaha Concrete Company Limited to their cousins’ company Consolidated Timbers Limited in 1991 and that from 1992 to 2017, when Consolidated Timbers Limited sold the properties back to Pansiba Limited, they had absolute control of the same and even filed a suit in 2005 and 2006 against the 1st Defendant to protect their interest.

34. According to the Plaintiff, is not true that the cause of action by the Plaintiff arose in 2005 as Pansiba only became the property owner in 2017; that Pansiba Limited and Consolidated Timbers Limited are separate and distinct companies with different Directors and that the suit is therefore not statute barred.

35. The second and third applications were filed by the 3rd Defendant. In the second application dated 5th September 2023, the 3rd Defendant has sought for the following orders:a.Spentb.Pending the hearing of this application, status quo ante prior to 29th June 2023 be ordered to prevail and the Plaintiff, its agents, servants, employees or any third parties whatsoever and howsoever be injuncted from invading, carrying out any construction on the property L.R. No. 209/16791, demolition of buildings and structures, evicting any persons lawfully in possession, interfering with the quiet possession or trespassing in any manner with the suit property that was sold by public auction on 25th April 2023 following dismissal of the injunction and review filed in Milimani Comm No. E399 of 2020 Midland Investments (KSM) Ltd v Prime Bank ltd & others.c.The order dated 29th June 2023 with regard to Land Reference Number 209/16791 be discharged or set aside to allow the registration of the transfer by Chargee pursuant to the public auction of 25th April 2023 following the sale of the charged property pursuant to the rulings of Hon. Justice Majanja dated 26th March 2021 in Milimani Comm. No. E399 of 2020 Midland Investments (KSM) Ltd v Prime Bank Ltd & Others v Prime Bank Ltd & Others dismissing the injunction application and ruling dated 6th April 2023 dismissing the application for review.d.The Notice of Motion dated 23rd May 2023 be stayed pending the determination of this application.e.The court issues summons to Plaintiff’s director Manjit Singh Sethi and its other directors to show cause why they should not be punished for contempt of court in accordance with Section 29 of the Environment and Land Court Act for failing to obey the terms of the orders given on 29th June 2023 that did not permit any invasion or assertion of ownership of the suit property by the Plaintiff.f.The suit be dismissed with costs for being time barred.g.The costs of the application and the suit be awarded to the 3rd Defendant.

36. The application is supported by the Affidavit sworn by George Mathui, Senior Legal Manager of Prime Bank, the 3rd Defendant. The grounds of the application are that this court has no jurisdiction as the suit property was sold by public auction following dismissal of the injunction application and the subsequent review application in Milimani Commercial No. E399 of 2020 Midland Investments (KSM) Ltd v Prime Bank Ltd & Others and that the 3rd Defendant exercised its statutory power of sale and sold the charged property L.R. No. 209/16791 through public auction for Kshs. 170 million to Omicron Limited on 25th April 2023.

37. The 3rd Defendant averred that as the equity of redemption has been extinguished, the property must be transferred as required by Section 98 and 99 of the Land Act; that the balance of the purchase price has been duly paid and the transfer documents executed by the Bank and that the transfer has however been frustrated by the court order dated 29th June 2023.

38. The 3rd Defendant further argued that this court has no jurisdiction over charged property and that the Environment and Land Court Act as read together with Article 162(2)(b) of the Constitution of Kenya does not confer jurisdiction to the Environment and Land Court to deal with matters relating to legal charges.

39. They further argued that this suit is res judicata as the High Court allowed the Bank to exercise its statutory power of sale; that the Plaintiff cannot assert any claim over the charged property which has been sold to a third party at a public auction sanctioned by the High court and that the Plaintiff, in contempt of the court order dated 29th June 2023, has proceeded to invade the suit property and put up an advertisement for development of the suit property.

40. The third application dated 13th September 2023 was filed by the 3rd Defendant and seeks the following orders:i.Pending the hearing of this application be pleased to issue the following injunctive orders:1. An order be issued directing the Plaintiff, its agents, servants, employees, any third parties or otherwise to forthwith vacate the charged property Land Reference Number 209/16791, remove all construction material that was forcibly brought on the property, cease all manner of construction, trespass and occupation of the suit property.2. The OCS of Mombasa Road Police Station be ordered to remove the Plaintiff, its agents, servants, employees, any third parties or otherwise from the charged property Land Reference Number 209/16791 in the event that they refuse to vacate the property within 24 hours of the court order.3. An injunction do issue reinstating the security firm appointed by the Administrator Ponangipalli Venkata Raman Rao of Midland Hauliers Limited (under Administration) to guard the charged property L.R. No. 209/16791 premises pursuant to the court order dated 20th August 2020 in Milimani Comm. E008 of 2019 Ponangipalli Rao, the administrator of Midland Hauliers Ltd (In Administration) v Javesh Kotecha & Others.4. The Plaintiff be ordered to bear the costs of returning all the vehicles/trucks and equipment forcibly removed from the charged property L.R. No. 209/16791 back to the property and be restrained from interfering with the vehicles that are exhibits in Nairobi Criminal Case No. E632 of 2021 R v Jayesh Kotecha & Others.ii.The injunction orders in prayer (ii) be confirmed pending the determination of the suit.iii.The court be pleased to order that an assessment of damages suffered by the 3rd Defendant be undertaken to be paid by the Plaintiff.iv.The police be ordered to investigate the Plaintiff, its directors and agents for the offence of trespass to land.v.Spent.vi.The costs of the application be awarded to the 3rd Defendant.

41. The grounds of the application, as set out in the Supporting Affidavit sworn by George Mathui, are that at all material times since 2020, the charged property L.R. No. 209/16791 has been in the possession of the Administrator Ponangipalli Venkata Rao of Midland Hauliers Limited (under administration) to guard the charged property pursuant to the court order dated 20th August 2020 in Milimani Comm. E008 of 209 Ponangipalli Rao, the administrator of Midland Hauliers Ltd (in administration) v Jayesh Kotecha & others.

42. Mr. George Mathui asserted that the Plaintiff has maliciously and contemptuously invaded the suit property and evicted the security guards from the charged property despite the order dated 20th August 2020 in Milimani Comm. E008 of 2019 and that the Plaintiff forcibly removed vehicles and equipment on 2nd September 2023 from the charged property which are exhibits in Nairobi Criminal Case No. E632 of 2021 and dumped construction material and commenced illegal construction on the charged property.

43. The deponent reiterated that the order of 29th June 2023 did not confer any right of access or ownership to the Plaintiff in respect of the charged property nor did it permit the Plaintiff to invade the charged property and that land parcel numbers I.R. 209/10848 and 209/10849 do not exist in law and that the 3rd Defendant is suffering extreme prejudice as it has a legal charge over the charged property which was sold by public auction and the transfer process has been frustrated.

44. A Further Affidavit was filed by the 3rd Defendant where it was deposed that in Insolvency Notice No. E008 of 2019, a site visit was conducted by the Deputy Registrar on 24th July 2020; that the site visit found that the gate of the suit property was branded ‘Midland Investments Limited’ and the property was guarded by Total Security Guards and that other than one warehouse branded ‘Nine Trading Ltd’ and ‘Midland Investments Limited’ on the gate, there was no other entity on site.

45. George Mathui emphasized that the Plaintiff was never in possession of the charged property. He annexed a License agreement dated 28th July 2022 between Midland Investments (KSM) Ltd and Difan Logistics (K) Ltd in respect of LR No. 209/16791 with the term ending on 31st August 2024; Lead Realtors Valuation Report dated 12th April 2023 showing that LR No. 209/16791 was inspected on 11th April 2013 and contained photographs of the property and a certificate under Section 15 (c) confirming the Auctioneer Joseph Gikonyo having visited the property on 6th December 2021 and found it unchanged from the description of the valuation report dated 2nd November 2021.

46. George Mathui also deponed that serious acts of perjury have been committed by Manjit Singh Sethi when he swore that Mr. Rao, the administrator, has never had possession of the suit property. He asserted that no evidence had been adduced by the Plaintiff to prove it was in possession of the suit property prior to the trespass on 2nd September 2023.

47. Ponangipalli Venkata Ramana Rao, an insolvency practitioner holding Licence No. P.L. No. OR/IP/001 deponed that since 2020, he had been in possession of LR No. 209/16791 and appointed security guards over the premises pursuant to the court order dated 20th August 2020 in Milimani Comm. Eoo8 of 2019 Ponangipalli Rao, the administrator of Midland Hauliers Ltd (in administration) v Jayesh Kotecha & others. He stated that the contract between Midland Hauliers Limited (in receivership) and Total Security Surveillance Ltd commenced on 16th July 2020.

48. He asserted that he engaged the firm of Total Security Surveillance to guard the suit premise pursuant to the court order following the site visit on 24th July 2020 in Insolvency Notice No. E008 of 209; that several vehicles on the suit property which were exhibits in Nairobi Criminal E632 of 2021 R v Jayesh Kotecha & others, which is still pending, were forcibly removed by the Plaintiff on or before 2nd September 2023 and that Total Security Surveillance Ltd gave a detailed report dated 9th September 2023 giving details of the forcible entry of the suit premises.

49. The deponent further stated that after forcibly taking possession, the Plaintiff has been constructing structures including a three roomed structure near the main gate and a mabati and steel structure for brick making. The deponent asserts that he downloaded google maps between 2020 to 2023, in respect of LR No. 209/16791, which showed the name of Midland Investments Ltd on the containers, trucks and main gate. Further, that in this period, there was no evidence of the three bedr0om structure near the main gate of the brick construction plant.

50. Mr. Rao additionally adduced as evidence logs of entry and exist kept by Total Security Surveillance Limited which recorded the invasion of the suit property on 2nd September 2023. It was his assertion that the Plaintiff has breached Section 561 of the Insolvency Act by interfering with the functions of the administrator and removing property covered by the administration without the leave of court.

51. The Plaintiff opposed the 3rd Defendant’s applications dated 5th and 13th September 2022, through a Replying Affidavit sworn by Manjit Singh Sethi and dated 18th September 2023 in which he deposed that no good title could be passed from the 1st Defendant to the 2nd Defendant and that the suit does not challenge the impugned commercial transactions on the forged titles such as the charges and auctions, but seeks to stop the Defendants from trespassing on their land and claiming title using the forged title.

52. The Plaintiff’s Director reiterated that P.V. Rao has never had possession of the suit property and his claims were not true; that strangers were removed from a section of the parcel of land that was being used by tenants of the 2nd Defendants, upon being served with the court order and that it is the 1st Defendant and Jayesh Kotecha, the 2nd Defendant’s Managing Director who had tried to lease a section of the suit property.

53. Counsel for all the parties filed detailed submissions and lists of authority which I have considered.

Analysis and Determination 54. The issues for determination in this court are as follows:a.Whether this suit is time barred under Section 7 of the Limitation of Actions Actb.Whether this court has jurisdiction over the suit propertyc.Whether the court should grant injunctive orders as sought by the Plaintiff.d.Whether the Plaintiff is in contempt of court.e.Whether orders should grant injunction orders to evict the Plaintiff from Land Reference Number 209/16791. f.Whether this court should issue orders of status quo ante prior to 29th June 2023.

55. Three applications are for the consideration by this court, which concern the status of occupation of the suit property. The Plaintiff, in their application, have sought orders of injunction to restrain the Defendants from transacting, selling, alienating, trespassing onto or dealing in any manner with the suit property. They assert that they are the lawful owners of the suit properties and are in possession of the same.

56. The Plaintiff asserts that its sister company, Ruaha Concrete Company Limited acquired the suit properties in 1990 from William Lasoi, the original allottee of the properties as per the letter of allotment dated 19th August 1988; that Ruaha Concrete later sold the properties to Consolidated Timbers Limited in 1991 and that from 1992 to 2017, when Consolidated Timbers Limited sold the properties back to Pansiba Limited, they had absolute control of the same.

57. It is the Plaintiff’s claim that in 1997, the 1st Defendant hired goons who forcefully trespassed into the suit properties, leading Consolidated Timbers Limited to institute Milimani CMCC 8087 of 2005 and that on 24th August 2005, injunction orders were issued restraining the 1st Defendant from dealing with the suit properties.

58. The Plaintiff asserts that that Consolidated Timbers Limited lost the titles to the suit property, which loss they reported to the police and applied for an abstract; that Consolidated Timbers Limited swore an affidavit on the loss of titles, requested for duplicate titles, and applied and was issued with provisional titles by the Registrar of Titles and that Consolidated Timbers Limited always paid the land rent for the properties

59. The 3rd Defendant has sought that the Plaintiff be evicted from Land Reference No. 209/16791 and has also sought orders of status quo ante prior to 29th June 2023. It asserts that at all material times since 2020, the charged property, L.R. No. 209/16791 has been in the possession of the Administrator Ponangipalli Venkata Rao of Midland Hauliers Limited (under administration) to guard the charged property.

60. According to the 3rd Defendant, on 2nd September 2023, the Plaintiff forcibly entered the suit property, removed vehicles and equipment from LR No. 209/16791 which are exhibits in Nairobi Criminal Case No. E632 of 2021 and dumped construction material and commenced illegal construction on the charged property.

61. The 3rd Defendant asserts that the court order dated 29th June 2023 did not confer any ownership rights to the Plaintiff and it should be punished for acting in contempt. In their response, the Plaintiff admitted the said actions and claimed that strangers were removed from a section of the parcel of land that was being used by tenants of the 2nd Defendant, upon being served with the court order.

62. The 3rd and 6th Defendants respectively filed Preliminary Objections asserting that the Plaint is time barred as the cause of action to recover land commenced on 16th July 2005 as asserted in CMCC No. 8087 of 2005 Consolidated Timbers Limited vs Abdorahman Guchamsa Alias, where the Plaintiff’s sister company sought injunctive orders and declarations that it was the owner of the suit properties.

63. They assert that more than 18 years have passed since the cause of action accrued in contravention of Section 7 of the Limitation of Actions Act. As jurisdiction goes to the root of the matter, this court shall first consider the preliminary objections raised by the Defendants.

64. The 3rd and 6th Defendants claim that this suit is time barred under Section 7 of the Limitation of Actions Act, which stipulates as follows:“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

65. The purpose of the law of limitation was stated in the case of Mehta vs Shah [1965] E.A 321, as follows;“The object of any limitation enactment is to prevent a Plaintiff from prosecuting stale claims on the one hand, and on the other hand protect a Defendant after he has lost evidence for his defence from being disturbed after a long lapse of time. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.”

66. In Gathoni vs Kenya Co-operative Creameries Ltd [1982] KLR 104, the Court of Appeal held as follows;“…The Law of Limitation of Actions is intended to protect Defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.”

67. In the case of Iga vs Makerere University [1972] EA, the Court had this to say on the law of limitation;“A Plaint which is barred by limitation is a Plaint barred by law. Reading these provisions together it seems clear that unless the Applicant in this case had put himself within the limitation period by showing grounds upon which he could claim exemption, the Court shall reject his claim. The Limitations Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for and when a suit is time barred the Court cannot grant the remedy or relief sought.”

68. It is not disputed that this suit concerns recovery of land as well as a claim of trespass. The question then is when the right of action accrued. The Plaintiff in this case has claimed that the suit property was fraudulently acquired by the 1st Defendant. The element of fraud allows for extension of time beyond the stipulated timeline. Section 26 of the Limitation of Actions Act provides as follows:“Where, in the case of an action for which a period of limitation is prescribed, either—(a)the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; or(b)the right of action is concealed by the fraud of any such person as aforesaid; or(c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it:Provided that this section does not enable an action to be brought to recover, or enforce any mortgage upon, or set aside any transaction affecting, any property which—i.in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; orii.in the case of mistake, has been purchased for valuable consideration, after the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made.”

69. Courts have held that in the instance of fraud, the cause of action accrues when the fraud is discovered. This was held in Edward Moonge Lengusuranga vs James Lanaiyara & another [2019] eKLR as follows:“A cause of action, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit. According to Section 26 of the Limitation of Actions Act the cause of action accrues when the fraud is discovered.”

70. It is the Defendants’ case that the cause of action in this matter accrued on 16th July 2005 as asserted in CMCC No. 8087 of 2005 Consolidated Timbers Limited vs Abdorahman Guchamsa Alias, where the Plaintiff’s sister company, Consolidated Timbers Limited, sought injunctive orders and declarations that it was the owner of the suit properties. They assert that more than 18 years have passed since the cause of action accrued in contravention of Section 7 of the Limitation of Actions Act.

71. The Plaintiff, on its part, asserts that it only became the property owner in 2017, and therefore the cause of action arose at that point in time. It asserts that Consolidated Timbers Limited is a separate legal entity with different directors from the Plaintiff; that the suit concerns a continuing trespass by the Defendants, and that every continuing trespass is a fresh trespass in respect of which a new cause of action arises from day to day as long as the trespass continues.

72. The Plaintiff relied on the Court of Appeal case of Kenya Power & Lighting Company Ltd vs Ringera & 2 Others [2022] eKLR as well as the case of Pharis Wekesa Masibo vs Beatrice Manyonge & 5 Others [2019] eKLR, where the court held that a continuing trespass which continues every day and cannot be defeated by the Limitation of Actions Act.

73. The Court of Appeal in Isaack Ben Mulwa vs Jonathan Mutunga Mweke [2016] eKLR similarly held that :-“Each action of trespass constitutes a fresh and distinct cause of action. It is inconceivable that a claim based on an action for trespass committed in 2015 would be res judicata simply because the same parties or their parents litigated over the same matter in 1985. It is a well-settled principle that continuous injuries to land caused by the maintenance of tortious acts create separate causes of action barred only by the running of the statute of limitation against each successive acts. As explained by the learned authors Winfield and Jolowicz in WINFIELD AND JOLOWICZ ON TORT, 11th Edition, Sweet and Maxwell, London, 1979 at page 342:-“Trespass, whether by way of personal entry or by placing things on the plaintiff’s land may be continuing and give rise to actions de die in diern so long as it lasts. Nor does a transfer of the land by the injured party prevent the transferee from suing the defendant for continuing trespass.”

74. The court is guided by the above determinations. The Plaintiff has adduced evidence showing that the directors of Pansiba Limited are different from those of Consolidated Timbers Limited. It is then apparent that these entities are separate and distinct. The Plaintiff could therefore not be said to hold a right to sue even before it acquired the suit property. The Plaintiff’s right of action to sue the Defendants arose in the year 2022 when the land was registered in its favour.

75. In their application dated 5th September 2023, the 3rd Defendant has deponed that this court has no jurisdiction over the suit property on the grounds that the suit is res judicata and that the suit property was sold by public auction following dismissal of the injunction application and the subsequent review application in Milimani Comm. No. E399 of 2020 Midland Investments (KSM) Ltd vs Prime Bank Ltd & Others. They assert that the 3rd Defendant exercised its statutory power of sale and sold the charged property L.R. No. 209/16791 through public auction for Kshs. 170 million to Omicron Limited on 25th April 2023.

76. The 3rd Defendant’s Counsel submitted that the Environment and Land Court Act as read together with Article 162(2)(b) of the Constitution of Kenya does not confer jurisdiction to this court to deal with matters relating to legal charges, and that several legal charges have been executed in favour of the Defendant Banks in this suit.

77. Counsel relied on the Court of Appeal’s decision in Co-operative Bank of Kenya limited vs Patrick Kang’ethe Njuguna & 5 Others [2017] eKLR, where the court held that:-“… The jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court.”

78. The Appellate court also held that :-“However, it bears repeating that the cause of action herein was never the charge (instrument) but the amounts due and owing thereunder. Neither the charge instrument nor the creation of an enforceable interest thereunder, were disputed. The main questions to be determined were the tabulation of the sums owing and whether statutory notices had issued prior to the attempted statutory sale.While exclusive, the jurisdiction of the ELC is limited to the areas specified under Article 162 of the Constitution, Section 13 of the ELC Act and Section 150 of the Land Act; none of which concern the determination of accounting questions. Consequently, this dispute does not fall within any of the areas envisioned by the said provisions.”

79. This position was affirmed by the Court of Appeal in Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates vs Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] eKLR, which held:“We reiterate the position taken in Co- operative Bank of Kenya Limited v Patrick Kangethe Njuguna (supra), that in construing whether the ELC had jurisdiction in a matter, the consideration must be the dominant issue in the dispute and whether that issue relates to the environment and the use and occupation of, and title to, land.”

80. This was further upheld in Bank of Africa Kenya Limited & another vs TSS Investment Limited & 2 Others (Civil Appeal E055 of 2022) [2024] KECA 410 (KLR), where the Court of Appeal overturned the determination of the Environment and Land Court in Mombasa. The Court of Appeal held :-“In view of the foregoing, the only question that falls to be determined is whether the Defendants’ suit against the appellants involved “… matters relating to environment and the use and occupation, and title to land”. We do not think so. In our considered view, the issues in contention in the suit, and the purpose for which the Defendants moved the trial court for the injunctive relief sought and granted in the impugned ruling, were intended to forestall the 1st appellant’s exercise of its statutory power of sale over the suit properties on the basis of the alleged tenancy relationship with the 3rd Defendant.19. Accordingly, we do not share the learned Judge’s view that the issues in contention between the Defendants and the appellants were matters relating to “… the environment and the use and occupation, and title to land” as contemplated in Article 162 of the Constitution, section 13 of the Environment & Land Court Act, and in section 150 of the Land Act. To our mind, such matters could only be subject to litigation between the 1st and 2nd Defendants as lessees, and the 3rd Defendant as lessor.20. We form this view taking to mind this Court’s decision in the afore-cited case of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others (supra) where it was held that the ELC only has jurisdiction to deal with disputes connected to “use” of land and contracts incidental to the “use” of land, which do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court. Moreover, a charge is a disposition that has no direct contractual relation to “use” (by a tenant or licensee) as in this case, of a chargor’s land. In view of the foregoing, we agree with learned counsel for the appellants that the learned Judge had no jurisdiction to entertain the Defendants’ suit as pleaded.”

81. This court is bound by the above determinations of the Court of Appeal. It is then for this court to consider whether or not the predominant issue in this matter falls within the jurisdiction of this court. This court is persuaded by the decision in Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Limited & another [2018] eKLR, where the court articulated the predominant issue test as follows :-“On my part, I would modify the above test, and hold the position that what is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court, for I think that the purpose of the transaction, may at times be different from the issue or subject matter before court. Let us take the transaction of a charge as an example. The predominant purpose of creating a charge is for one to be advanced some financial facilities. However, when it comes to litigation, the predominant issue may not necessary be the money, but the manner in which the chargee, is exercising its statutory power of sale. Here, I trust that you will see the distinction between the predominant purpose of the transaction and the predominant issue before court. That is why I hold the view, that in making a choice of which court to appear before, one needs to find out what the predominant issue in his case is, and not necessarily, the predominant purpose of the transaction. If the litigant’s predominant issue will touch on the use of land, or occupation of land, or a matter that affects in one or another, title to land, then such issue would fall for determination before the ELC.”

82. In this case, the predominant issue is the matter of ownership of the suit property, and the question of whether the Defendants acquired the titles fraudulently and are in trespass against the Plaintiff’s title. No issue has been raised challenging the charge or the exercise of the statutory power of sale. It is however evident that the question of the validity of title to the suit property will impact upon the interests held by the banks over the suit property, which it has sought to bestow upon a third party.

83. On this basis, this court finds that it has jurisdiction over this subject matter. This is in accordance to Article 162(2)(b) of the Constitution, which establishes this court to hear and determine disputes relating to the use and occupation of, and title to, land. The matter herein concerns title to land.

84. It is also in accordance with Section 13(2) of the Environment and Land Court Act which stipulates that this court has jurisdiction to determine disputes relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land.

85. The 3rd Defendant has also asserted that this suit is res judicata. The legal framework of res judicata is set out in Section 7 of the Civil Procedure Act as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

86. The Supreme Court case of John Florence Maritime Services Limited & another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR delimited the operation of the doctrine of res judicata as follows:“We reaffirm our position as in the Muiri Coffee case that the doctrine of res judicata is based on the principle of finality which is a matter of public policy. The principle of finality is one of the pillars upon which our judicial system is founded and the doctrine of res judicata prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.”

87. The Supreme court further laid out the elements to invoke res judicata in a civil suit:“For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR).”

88. In this case, the 3rd Defendant has asserted that this matter is res judicata in view of the rulings delivered by Hon. Justice Majanja in Milimani Comm. No. E399 of 2020 Midland Investments (KSM) Ltd vs Prime Bank Ltd & Others, in which the honourable judge dismissed the injunction application and the application for review.

89. The 3rd Defendant has however not presented any proof to establish that Judgment on merit has been rendered in the commercial matter. Further, the jurisdiction exercised by this court is distinct from that exercised by the High Court. This has been elucidated in detail in the above paragraphs.

90. Further, while the 2nd and 3rd Defendants herein were parties to the Commercial matter, neither the Plaintiff, the 1st Defendant nor the 4th- 10th Defendants were parties to that case. Further the subject matter properties in the Commercial court were L.R. No. 209/16791 in Nairobi and Title No. Kisumu Municipality/Block 6/22. The properties that are the subject matter in this suit are L.R. No. 209/16791 and L.R. No. 209/16790 and LR No.s 209/10846, 209/10847, 209/10848 and 209/10849.

91. Lastly, the issues raised by the Plaintiff, and specifically allegations of fraud as against the Defendants in respect of amalgamation, transfer and charging of the suit properties were not before the commercial court. Noting the above distinctions between this case and the commercial suit, this court must find that the matter is not res judicata.

92. Having found that this court is properly vested with jurisdiction, this court now proceeds to consider the merits of the applications filed by the Plaintiff and the 3rd Defendant.

93. The Plaintiff in this case has sought orders of temporary interlocutory injunction restraining the Defendants from dealing with the suit property, pending the hearing and determination of this suit. The law on grant of interlocutory injunctions is prescribed under Order 40 Rule 1 of the Civil Procedure Rules, 2010 as follows:“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 if 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.”

94. As set out in the locus classicus case of Giella vs Cassman Brown (1973) EA 358 and by the Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR, an applicant seeking an interlocutory injunction must satisfy the court on the following three requirements, that:a.They have a prima facie case with a probability of success;b.They will otherwise suffer irreparable injury which would not adequately be compensated by an award of damages; andc.If the court is in doubt, it will decide an application on the balance of convenience.”

95. The first requirement is for the Plaintiff to satisfy this court that they have a prima face case. A prima facie case was defined in Mrao Ltd vs First American Bank of Kenya and 2 Others, (2003) KLR 125 as:“A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

96. In Kenleb Cons Ltd vs New Gatitu Service Station Ltd & Another [{1990} K.L.R 557] Bosire J held that;“to succeed in an application for injunction, an applicant must not only make a full and frank disclosure of all relevant facts for the just determination of the application but must also show he has a right legal or equitable, which requires protection by injunction.”

97. The Plaintiff’s case is that it is the lawful and rightful owner of the suit property, which it purchased from Consolidated Timber Limited. It claims that this position is supported by the investigations carried out by the DCI, which concluded that the 1st Defendant fraudulently acquired forged titles and transferred the plots to the 2nd and 4th Defendants, who used the same as collateral for loans.

98. The Plaintiff submitted that it has provided evidence showing the history of the proprietors of the plots and its titles are therefore genuine. It further submitted that the Plaintiff’s legal right to own and enjoy its property has been violated by the 1st to 6th Defendants.

99. The Plaintiff has annexed a letter of allotment with respect to un surveyed Plots No. 11, 12, 13 and 18 in Embakasi dated 19th August 1988; letter from the Commissioner of Lands to Manjit Singh Sethi dated 30th May 1990, with respect to payment of Kshs. 524,800/- for the un surveyed plots and a cheque to the Commissioner of Lands for Kshs. 524,800/- dated 17th September 1990.

100. The Plaintiff asserts that its sister company Ruaha Cement Company Limited purchased the suit property from William Lasoi in 1990 and that they agreed to transfer the land from Ruaha Concrete Company Limited to their cousin’s company, Consolidated Timbers Limited in 1991. No documentation of this transfer has been availed.

101. The Plaintiff has all the same presented titles for LR Nos 209/ 10846, 209/ 10847, 209/ 10848 and 209/ 10849, all registered in favour of Consolidated Timbers Limited in 1992, as the first registered proprietor.

102. Furthermore, the Plaintiff has presented a letter dated 1st July 1997 marked MSS 7(b). The letter, whose subject matter is ‘Un surveyed Plot No.s 11, 12, 13 & 18’ is written and signed by MS Sethi as a Director of Ruaha Concrete Company to the Department of Lands. He indicates that the conditions stipulated by the Department of Lands had been complied with and the title deeds had been issued in the name of Ruaha Concrete Company Limited. He also informed the Department that they had lost or misplaced the title deeds and were seeking advise on the procedure to be followed to get duplicate title deeds.

103. Similarly, on 11th July 2007, Heri Properties, on behalf of Consolidated Timbers Limited, wrote to the Permanent Secretary Ministry of Lands and Settlement with respect to Plot No. s 209/10846-9. They indicated that there had been illegal interference with the land for five years, and that they had lodged applications for provisional titles after misplacing the titles.

104. The Plaintiff also annexed a copy of an abstract from police records dated 3rd July 2012 for the loss of titles by Consolidated Timbers Limited for Plot Nos. 209/10846-9. Following gazettement, provisional titles were issued to Consolidated Timbers Limited for the said properties on 16th February 2007.

105. The suit properties were thereafter transferred to the Plaintiff, on 20th June 2022, as seen from the titles annexed to the affidavit sworn by PC. Alex Muinde. The Plaintiff asserts that Consolidated Timbers Limited was on the suit property until 2017, when they entered into an agreement with the Plaintiff.

106. In support of their claim that the Defendants have fraudulently transferred property to themselves, the Plaintiff has annexed the statement made by Perminder Singh, a Director of the Plaintiff, indicating that they were the rightful owners of the suit property, and that Abdirahman Muhumed Abdi had fraudulently amalgamated the suit properties into LR No. 209/16791 and 209/16790.

107. The Plaintiff also annexed a Valuation Report by Regent Valuers with respect to LR No. 2019/10846-9, dated 22nd February 2023. The report indicates that the suit properties were occupied by unauthorized persons, being Palm Oil Transporters Limited and Midland Investments Limited. They also relied on the statement by PC Alex Muinde, who found that the titles registered to Abdirahman Muhumed Abdi were forgeries.

108. The Plaintiff has adduced certificates of title to the suit property, which is prima facie evidence of its ownership of the suit land. However, the Defendants have also annexed titles to the same property, which shows that LR No. 2019/10846-9 was registered in the name of Abdirahman Muhumed Abdi, which were later amalgamated into LR No. 209/16791, registered in the name of the 2nd Defendant and LR No. 209/16790 registered in the name of the 4th Defendant.

109. According to the documents annexed on the Defendants’ affidavits, the suit properties were registered in favour of the 1st Defendant on 1st September, 2006, way before the provisional certificates were issued on 27th July, 2012 in favour of Consolidated Timbers Limited, and subsequently registered in the name of the Plaintiff in 2022.

110. What this means is that before this court delves into the issue of the propriety of the Plaintiff’s and the Defendants’ titles at trial, it is the finding of the court that the 1st Defendant’s title that was obtained in the year 2006 takes precedence over the Plaintiff’s title that was issued in the year 2022.

111. It is not clear to this court if indeed the titles currently registered in favour of the Plaintiff are still in existence in view of the amalgamation of the initial plots which gave rise to new numbers all together.

112. Further, the Plaintiff annexed a Valuation Report by Regent Valuers with respect to LR No. 2019/10846-9, dated 22nd February 2023. The report indicates that the suit properties were occupied by unauthorized persons, being Palm Oil Transporters Limited and Midland Investments Limited. This must have been the position that was subsisting before this court issued an ex parte order in favour of the Plaintiff on 29th June, 2023.

113. Having gone through the affidavit evidence of the 3rd Defendant, this court is satisfied that vide the order of the court of 20th August, 2020 in Milimani Commercial E008of 2019, it is the guards of the administrator of the 2nd Defendant, appointed by the 3rd Defendant, that were guarding the suit premises, including the properties therein before the Plaintiff evicted them.

114. This court is also satisfied, based on the litigation that is ongoing in Milimani Commercial E008of 2019, that the 2nd and 4th Defendants have occupied the suit property for several years and have constructed warehouses upon the said property and have various assets on the said properties.

115. Should this court grant the injunction sought, and thereafter find in favour of the Defendants, the loss to the Defendants would be far greater than if the injunction was not granted and the court finds in the Plaintiff’s favour.

116. Therefore, while this court has found both the Plaintiff and the Defendants have titles to the suit property, and therefore prima facie cases, until the court makes a finding at trial which of the title is a forgery, it is the Defendants who stand to suffer irreparable injury. The injury dwarfs the injury that would be inflicted upon the Defendants, were the court to issue the injunction sought by the Plaintiff.

117. Indeed, the court did not authorize the Plaintiff to evict the so called strangers from the suit property when it issued the orders of 29th June, 2023. Consequently, it was irregular on the part of the Plaintiff to use the ex parte orders of 29th June, 2023 to evict the Defendants’ agents, and cart away the equipment without an express order sanctioning such an action.

118. That being the case, and considering what I have stated above, the prevailing status quo ante the actions of the Plaintiff purportedly pursuant to the order of 29th June, 2023 should be restored.

119. The 3rd Defendant has further averred that the Plaintiff is in contempt of the orders of this court for failing to obey the terms of the orders given on 29th June 2023, which did not permit any invasion or assertion of ownership of the suit property by the Plaintiff.

120. The substantive law governing contempt proceedings is found in Section 5 of the Judicature Act, which provides as follows:“(1)The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of Justice in England, and such power shall extend to upholding the authority and dignity of subordinate courts.(2)An order of the High Court made by way of punishment for contempt of court shall be appealable as if it were a conviction and sentence made in the exercise of the ordinary original criminal jurisdiction of the High Court.”

121. Section 29 of the Environment and Land Court Act on offences, also provides that:“Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.”

122. Courts in Kenya have applied a condensed approach to the elements of civil contempt. In Cecil Miller vs Jackson Njeru & Another [2017] eKLR the court outlined the ingredients for contempt of court orders as follows :-a.The terms of the order/or injunction or undertaking, were clear and unambiguous and were binding on the defendants;b.The Defendant has knowledge of or proper notice of the terms of the order;c.The Defendant has acted in breach of terms of the order and;d.The Defendant’s conduct was deliberate.

123. These elements were similarly laid down in North Tetu Farmers Co. Ltd vs Joseph Nderitu Wanjohi [2016] eKLR, where the court relied on the text titled ‘Contempt in Modern New Zealand’:“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.”

124. The interim orders that this court issued on 29th June 2023 granted prayer 2 of the Plaintiff’s application dated 23rd May 2023. Prayer 2 was that:“Pending the hearing and determination of this application inter-parties, this Honourable Court be pleased to issue a temporary order of injunction restraining the 1st, 2nd, 3rd, 4th, 5th, 6th , 7th , 8th, 9th and 10th Defendants by themselves, their agents, servants or personal representatives from transacting, selling, alienating or trespassing onto or in any way whatsoever interfering with or otherwise dealing with the property (known as Land Title Number I.R. 209/10846 and 209/10847 now consolidated and amalgamated into Land Parcel Number LR No. 209/ 16791 measuring 0. 8000. Hectares and Land Parcel Number I.R. 209/10848 and 209/10849 now consolidated into LR No. 209/ 16790 measuring 0. 8000 Hectares).”

125. The orders are undeniably ambiguous. On one part, they are clearly couched to be prohibitory injunction. On the other hands, in granting the orders, this court indicated its intention that the orders be for the purpose of maintaining the status quo and therefore preserving the subject matter. In its Ruling, the court stated as follows:“Whereas the 3rd and 4th Defendants advocates allege that their clients will suffer prejudice, the court is not convinced that preserving the suit property as it is, is prejudicial to the parties…I therefore grant prayer 2 of the Application since it is a status quo order until the Ruling is delivered on 16/10/2023. ”

126. Noting that the central issue in this case is the occupation and possession of the suit property by the 2nd and 4th Defendants, the effect of these orders was to restrain the Defendants from accessing the suit property, thereby altering the status quo. Consequently, while crafted by the Plaintiff in terms denoting a prohibitory injunction, these orders were mandatory injunction orders, whose threshold is much higher than that of prohibitory injunctions.

127. While no party has disputed that they were unaware of the orders of the court issued on 29th July 2023, and the Plaintiff has itself admitted to evicting the 2nd Defendant from the suit land, this court cannot find that the Plaintiff was in contempt of the said orders as they were evidently ambiguous.

128. It is all the same plain to this court that the Plaintiff has used the prohibitory orders it was granted to tilt the odds in its favour by taking possession of the suit property irregularly, unlawfully and in abuse the of court process.

129. The 3rd Defendant has sought a mandatory injunction to evict the Plaintiff from the suit property. It is its argument that upon the Plaintiff obtaining interim orders in this suit, the Plaintiff disregarded the court process and has trespassed into the premises using the said orders to evict the 2nd Defendant and took possession of the suit property and that the Plaintiff repainted the gate and buildings in the property, and removed the 2nd Defendant’s security guards and property and goods that were on the premises and commenced construction on the property causing severe loss and damage to the 2nd Defendant, its licensees and tenants.

130. The Plaintiff has not denied that they sought to evict parties from the suit property. In his Affidavit Manjit Singh Sethi admits that strangers were removed from a section of the parcel of land that was being used by the tenants of the 2nd Defendants, upon being served with the court order.

131. The Court of Appeal in Kenya Breweries Limited & Another vs Washingtone O. Okeyo Civil Appeal No. 332 of 2000 [2002] 1 EA 109 prescribed that a mandatory injunction should only be granted in special circumstances, such as where a party has attempted to get an advantage over another:“A mandatory injunction can be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not normally be granted. However if the case is clear and one which the Court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff, a mandatory injunction will be granted on an interlocutory application…A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the Court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff.”

132. This court is also guided by the locus classicus case of Kamau Mucuha vs The Ripples Ltd. Civil Application No. Nai. 186 of 1992 [1990-1994] EA 388; [1993] KLR 35 the Court of Appeal (Hancox, JA, as he then was) expressed himself as hereunder“In the instant case, it is of course possession rather than the destruction that the plaintiff was seeking. The statements contained in the above passages, however, leave out of account, the situation when, as it is alleged that the defendant has taken the law into his own hands and taken direct action instead of going through the legally prescribed procedure. In other words he has, by his own act, disturbed the status quo. Is it to be said that the plaintiff may not go to the Court to seek an order which is mandatory in the sense that it compels the other party to do some act which restores the status quo? It is fallacious for a person who forcibly and riotously enters premises to maintain that his occupation of these premises is the status quo which must be maintained, and not disturbed, which of course in very many cases is the object of a temporary injunction – to keep things in status quo so that the property in question is maintained, as far as possible, intact until a final determination of the suit. The status quo is not that which existed after the intruder’s illegal acts, but that which existed beforehand… If the defendant has rushed on with his work in order to defeat the plaintiff’s attempts to stop him, then upon the plaintiff promptly resorting to the Court for assistance, that assistance is likely to be available for this will in substance be restoring the status quo, and the plaintiff’s promptitude is a badge of the seriousness of his complaint… The status quo was the state of affairs subsisting before the applicant entered the premises, evicted the Defendant and installed another tenant. The learned Judge recognised the seriousness of a temporary mandatory injunction but nevertheless decided to grant it and thereby restore the status quo and he was right.”

133. On his part, Kwach, JA held that:“In the instant case the applicant is in flagrant disobedience of the order of the Judge and now comes to the Court of Appeal for temporary dispensation. He should not be allowed to use the process of the court for such a patently mischievous purpose. Having got back into the house with strong hand and with multitude of people, he has established himself in the house, and then says “I ought not to have an injunction given against me to make me go out because I got back here and got my boys back, and therefore, I want the status quo preserved”. The status quo that could be preserved was the status quo that existed before these illegal and criminal acts on the part of the defendant. It is a strange argument to address a court of law that we ought to help the defendant, who has trespassed and got himself into these premises in the way in which he has done and say that would be preserving the status quo and that it would be good reason for not granting an injunction.”

134. This court is satisfied that there are special circumstances that warrant the issuance of mandatory eviction orders. The 3rd Defendant’s application to evict the Plaintiff from the suit property is therefore merited and the same is allowed.

135. The 3rd Defendant has asked this court to issue orders of status quo ante prior to 29th June 2023. The status that prevailed at that time was that the 2nd Defendant and its administrator was in possession of LR No. 209/ 16791 and the 4th Defendant was in possession of LR No. 209/16790. The Plaintiff was not in possession of the suit property.

136. The Court of Appeal in the case of Mugah vs Kunga [1988] KLR 748, upheld the practice of issuing status quo orders in land matters, for the purpose of preserving the subject matter. It stated:“Status quo orders should always be issued for purposes of preserving the subject matter. This court’s practice direction vide Gazette Notice No. 5178/2014 have followed suit. Practice direction No. 28(k) is relatively clear. It gives the court the leeway and discretion to make an order for status quo to be maintained until determination of the case.”

137. In the case of Kenya Airline Pilots Association (KALPA) vs Co-operative Bank of Kenya Limited & Another [2020] eKLR, the purpose of a status quo order was explained as follows:“... By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”

138. This court is guided accordingly. As discussed above, the current Plaintiff’s possession of LR No. 209/16791 is irregular, and should be negated.

139. In conclusion, this court finds the Plaintiff’s application dated 23rd May 2023 lacks merit and partially allows the 3rd Defendant’s applications dated 5th and 13th September 2023 as follows:a.There shall be no further constructions or development on the two disputed parcels of land. Constructions which are ongoing to forthwith cease.b.There shall be no destructions of any of the structures erected on the suit property.c.There shall be no charging, alienating or transferring of the suit property until the suit is heard and determined.d.The Plaintiff to revert possession of LR No. 209/16791 to the 2nd Defendant and Total Security Surveillance Ltd, who shall maintain possession pending the hearing and determination of the suit.e.The Plaintiff’s Directors to return all the vehicles/trucks and equipment forcibly removed from the charged property L.R. No. 209/16791 back to the property at its own cost within five (5) days.f.The Plaintiff to bear the costs of the applications.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. O. A. AngoteJudgeIn the presence of;Mr. Musundi for PlaintiffMs Ashey for 4th DefendantMs Gitonga for Mogeni for 2nd DefendantMr. Muhizi holding brief for Gichuhi (S.C) for 3rd DefendantMr. Allan Kamau for Attorney GeneralCourt Assistant - Tracy