[2017] KEHC 2827 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 477 OF 2014

PENINA LYNET OLUMATIA :::::::::::::::::::: PLAINTIFF/APPLICANT

VERSUS

LUKAS ORENDE OPAILE :::::::::::: 1ST DEFENDANT/RESPONDENT

PROTUS OMBAKA SHITUBI :::::::: 2ND DEFENDANT/RESPONDENT

RULING

This application is dated 19th August 2016 and is brought under order 40 Rule 1, 2, 3 and 4 of the Civil Procedure Rules Section 1a, 1b, 3, 3a and 63e of the Civil Procedure Act seeking the following orders:-

1. THAT this application be placed before the judge and be certified as urgent.

2. THAT service of this application be dispensed with and the same be heard exparte in the first instance.

3. THAT the honourable court be pleased to grant an order of temporary injunction restraining the defendant whether by himself or through his employees, servants, workers and or authorized persons claiming through him or any of them or otherwise from doing the following acts or any of them that is to say from blocking off the easement, interfering with the use of, disposing off, alienating, changing, interfering in any other way with the peaceful use, tending to crops on a portion of land measuring 1 acre comprised in title number East Wanga/Isongo/3812 created out of the initial original title comprised in land reference number East Wanga/Isongo/923 pending the hearing and determination of this application.

4. THAT the honourable court be pleased to grant an order of temporary injunction restraining the defendant whether by himself or through his employees, servants, workers and or authorized person claiming though him or any of them or otherwise from doing the following acts or any of them that is to say from blocking off the easement, interfering in any other way with the peaceful use, tending to crops on a portion of land measuring 1acre comprised in title number East Wanga/Isongo/3812 created out of the initial original title comprised in land reference number East Wanga/Isongo/923 pending the hearing and determination of this suit.

5. THAT pending the hearing and determination of this suit the status quo that has been prevailing in terms of occupation and use of the 1st acre of land in the suit title be maintained.

6. THAT pending the hearing and determination of this suit there be a restriction order over the register for land reference number East Wanga/Isongo/3812 by the Land Registrar to stop any illegal, secret and unlawful transactions that may defeat the interest of the plaintiff in the suit land.

7. THAT in the event the 1st defendant and or any of his servants disobey orders sought in prayer 3, 4, and 5 then the officer commanding Makunga police station or officer delegated under his/her command to ensure that the said orders are complied with.

8. THAT costs of this application be provided for.

The plaintiff/applicant submitted that by an agreement dated the 9th November, 2004 she purchased a portion of land measuring 1 acre from the 1st defendant which portion was to be created out of the defendants’ title comprised in land parcel number East Wanga/Isongo/923. She paid the agreed consideration of Ksh. 90,000/= in full and final payment (Annexed and marked as PO2a and PO2b are copies of the said agreement and the acknowledgement note dated the 25/9/2006). As a bonafide buyer of value she was shown the purchased portion of land and she was allowed to possess it whereof beacons in form of sisal boundary markings were fixed on the ground by the defendants distinguishing her portion of one acre from the defendants’ land on the lower right hand side of the said land. She started utilizing and using her said land and that to date she am still in possession and she have done substantial developments which can be quantified to about Ksh. 1,000,000/= as at now which include, constructing two semi permanent houses, digging and construction a pit latrine planting trees, potatoes, vegetables, bananas, maize, napier grass, beans, yams, cassava etc. and erected a barbed wire fence around the said land (Annexed and marked PO3 is a copy of the valuation report dated 23/7/2014 supporting the status of her property on the suit land). The said sale was voluntarily without any force and that it was the implied term and mutual understanding of the said agreement that the 1st and 2nd defendants shall appear before the necessary land control board to transfer the said portion into her names. That this has not happened as the defendants jointly and severally without any colour of right and justified cause ganged up with intend to defraud her secretly and fraudulently surveyed and subdivided land parcel number East Wanga/Isongo/923 into two portions known as land parcel numbers East Wanga/Isongo/3812 and 3813 registered in the names of the defendants respectively at her exclusion. This prompted her to file this suit to either recover land from the defendants or be compensated the current monetary value. The 1st defendant by himself through his authorized agents and servants is now threatening her to vacate the said land a move that is likely to render her landless.

The defendant/respondent submitted that, he entered into a land sale agreement with the plaintiff/applicant Penina Lynet Olumatia, on 9th November, 2004 to sell her one acre from his portion of 7. 25 acres from Land parcel East Wanga/Isongo/923 which they were owning in equal shares with Protus Ombatia Shitubi who has his separate portion of Ksh. 7. 25 acres at a consideration of Ksh. 90,000/= which amount was paid in full. The said Land parcel East Wanga/Isongo/923 is ancestral land which he inherited from his father. That after the said land sale agreement, his family members including his wife and children became aware of it, they declined to consent to the transaction and at the earliest opportunity he informed the plaintiff and his willingness to refund the purchase price now that the transaction could not go due to the said circumstances beyond his control but she declined the said refund and instead filed the instant suit. Though the applicant has been having possession of the portion of land that he sold to her it is not true that she has done substantial developments which can be quantified to about Ksh. 1,000,000/= as alleged as there are only two mud-walled iron sheet roofed houses, a mud walled pit latrine constructed on the said portion and occasionally the applicant grows subsistence food crops like maize, beans and potatoes. It is not true that the applicant has erected a barbed wire fence around the said portion and any developments by the applicant on the said portion including the said food crops cannot exceed Ksh. 50,000/=. That the said valuation report dated 23rd July, 2014 annexed on the applicant’s affidavit and marked “PO – 3” shows that the land title No. E. Wanga/Isongo/3812 is registered in the names of Lukas Orende Opaile the 1st respondent herein and not the applicant. The applicant cannot therefore purport to value the whole of the said land parcel or part thereof that does not belong to her. The said sub-division of the said land Parcel East Wanga/Isongo/923 into land parcel East Wanga/Isongo/3812 and 3813 was done lawfully, procedurally and without any fraud following a court order issued vide Kakamega High court succession Cause No. 97 of 1983 which ordered that the said land parcel East Wanga/Isongo/923 be subdivided in two (2) equal shares to be shared between respondents (annexed copies of extracts of the said orders dated 2nd December, 1988 and 3rd March, 2008 marked “LOO-1 & 2 respectively). That the instant suit was unprocedurally, unlawfully and prematurely filed by the plaintiff/applicant in the premises as she declined a refund aforesaid even after he made it known to her that the land sale agreement had completely failed and the transaction frustrated in circumstances beyond his control for want of consents. The respondents submitted that the orders the applicant is seeking in the said application dated 19th August, 2016 are not legally and procedurally available to her as she is not lawfully registered as the owner of the 1 acre portion of land that she bought and the transaction was frustrated in circumstances beyond the 1st respondent’s control and the requisite Land Control Board consents have not been obtained as required under the Land Control Act and therefore the instant application is incompetent, defective, lacks merit, misconceived, bad in law and an abuse of the court process and should be dismissed with costs.

This court has considered both the Applicant’s and the Respondent’s submissions and the supporting affidavits therein. The application being one that seeks injunctions, has to be considered within the principles set out in the case of GIELLA VS CASSMAN BROWN & CO. LTD 1973 E.A 358 and which are:-

1. The applicant must show a prima facie case with a probability of success at the trial

2. The applicant must show that unless the order is granted, he will suffer loss which cannot be adequately compensated in damages and,

3. If in doubt, the Court will decide the application on a balance of convenience.

It must also be added that an interlocutory injunction is an equitable relief and the Court may decline to grant it if it can be shown that the applicant’s conduct pertinent to the subject matter of the suit does not meet the approval of a Court of equity.

The subject matter of this suit is land reference number East Wanga/Isongo/3812 and that the suit is pending for hearing and final disposal. The plaintiff/applicant submitted that she has interest in the suit land as a bonafide purchase of value. That the plaintiff by the consent of the 1st defendant is in possession, use and occupation of a portion of 1 acre in the suit land which she has extensively developed which comprises of her homestead. The plaintiff/applicant alleges that status quo on the ground which has been peaceful since the time of purchase has now deteriorated with an aim of being changed to the detriment of the plaintiff. That the applicant is apprehensive that the 1st defendant may dispose off the suit land inclusive of her portion and that unless this honourable court intervenes the 1st defendant may part with possession of the said land whereof the applicant shall be prejudiced and suffer great loss and damage. That the applicant is further apprehensive that if she is denied access to the suit property as threatened by the 1st defendant her peaceful occupation of her home and enjoyment of her farming activities and her movements in and out of the suit property may be disrupted for no reasonable cause whereof she may be put to economical loss. That the 1st defendant’s misrepresentation and conduct over time has made the plaintiff to believe that she has equitable right to the freehold interest in the suit property on completion of the purchase price and the 1st defendant’s actions are in total breach of contract. That unless the honourable court intervenes the plaintiff shall suffer great prejudice, loss and harm which the defendant may not be in the position to compensate her. That at all material times to this suit the defendants were jointly and severally registered owners of all that parcel of land designated as land parcel number East Wanga/Isongo/923 before its survey and subdivision into two portions namely land parcel number East Wanga/Isongo/3812 and 3813(Annexed and marked PO1 is a copy of an official search dated 1/10/2012). The defendant/ respondents submitted that, the instant suit was unprocedurally, unlawfully and prematurely filed by the plaintiff/applicant in the premises as she declined a refund aforesaid even after he made it known to her that the land sale agreement had completely failed and the transaction frustrated in circumstances beyond his control for want of consents. The 1st defendant/respondent admits selling the land to the applicant but claims the transaction has been frustrated. Secondly he disputes the value of developments made on that portion of the land. I find that the plaintiff/applicant has shown a prima facie case with a probability of success at the trial and has shown that that unless an order is granted, she will suffer loss. I therefore make the following orders;

1. That the status quo be maintain a portion of land measuring 1acre comprised in title number East Wanga/Isongo/3812 created out of the initial original title comprised in land reference number East Wanga/Isongo/923 pending the hearing and determination of this suit.

2. Costs of this application be in the cause.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 11TH DAY OF OCTOBER 2017.

N.A. MATHEKA

JUDGE