[2012] KEHC 5228 (KLR)

PETER OCHIENG OKORE

MILICENT AKINYI WAO t/a

SIG TUNES COMMUNICATIONS……..........………………………………….PLAINTIFFS

VERSUS

BISHOP GEORGE BARACK …………………...…….…………………..1ST DEFENDANT

REGISTRED TRUSTEES EVANGELISM

HARVEST FELLOWSHIP MINISTRY …………….....………………….2ND DEFENDANT

MUNICIPAL COUNCIL OF KISUMU………….…….....………………..3RD DEFENDANT

RULING

The applicants application dated 9th February 2011 prays for the following orders:-

1. That this Honourable court be pleased to hear this application ex-parte in the first instance.

2. That pending the hearing and determination of this application inter – parties there be a temporary injunction against the defendants/respondents, their agents, representatives, assigns or any other person acting through their direction from trespassing, conducting prayers upon the land, destroying fence, destroying property or in any way interfering with the plaintiff’s parcel of land number KISUMU / MUNICIPALITY / BLOCK 12 / 118.

3. That pending the hearing and determination of this suit there be a temporary injunction against the defendants / respondents, their agents, representatives, assigns or any other person acting through their direction from trespassing, conducting prayers upon the land, destroying fence, destroying property or in any way interfering with the plaintiff’s parcel of land number KISUMU / MUNICIPLAITY / BLOCK 12 / 118.

4. That costs of this application be provided for.

The same is supported by the supporting affidavit of Peter Ochieng Okore and Millicent Akinyo Wao. They have averred that they are the registered proprietors of the suit land namely Kisumu / Municipality Block 12 / 118 and have attached a copy of the Title Deed which they obtained on 15th September 2007. It was their argument that the defendants have trespassed therein and are busy conducting prayers in their land without their authority.

The 1st and 2nd defendants have sworn a replying affidavit through the 1st defendant dated 8th March 2011. According to them they sought the 3rd defendant’s permission to occupy the suit land way back in 15th December 2009. From the annextures to their affidavits it appears that the defendants were simply promised by the 3rd defendant that their request shall be considered among others.

The 3rd defendant has equally respondent vide the replying affidavit of Daniel S. Okere, the clerk. The upshot of the affidavit is that they have got no business in this case. The only time they were involved was when responding to the plaintiff’s letter requesting for land and when they sought to have the illegal structures removed on the suit land as whoever was constructing them didn’t have its approval. The 3rd defendant didn’t exhibit any document showing that it had granted the suit land to the plaintiff.

I have perused the pleadings herein together with the able submissions by the respective counsels. What is apparent is that the plaintiffs are the current registered owners of the suit property.The 1st and 2nd defendants are not.

It is further clear that the 2nd defendant requested for land for purposes of conducting their worship from the 3rd defendant.The 3rd defendant acknowledged their request but its response was that their request was being considered.

It appears equally from the pleadings as well as the submission by the counsel that the defendants are already in occupation of the suit premise. The principles of granting a temporary injunction are now well settled, namely:-

(a)If a prima facie case has bee established.

(b)If irreparable loss shall be suffered that damages cannot be an adequate compensation.

(c)If in doubt on a balance of convenience.

See Giella =vs= Cassman Brown & Co Ltd [1973] E. A. 358 I am persuaded that a prima facie case has been established by the plaintiffs herein. They are the current legitimate holders of the title. Under the provisions of Section 27 and 28 of the Registered Land Act Chapter 300, their title is indefeasible unless by fraud or misrepresentation. At the moment none of the defendants is alleging that the plaintiffs fraudulently obtained the title. In fact the 3rd defendant is disassociating itself from the 1st and 2nd defendants. The 3rd defendant case is that it never granted permission or authority to the defendants to occupy the land.As a matter of fact its letter date 29th September 2010 is written to a stranger.

The balance of convenient tilts in the plaintiff favour. The defendants are mere trespassers. They were not permitted by the plaintiffs least of all the 3rd defendants to occupy the plaintiff parcel of land. They cannot therefore be allowed to use the land save with the plaintiffs permission. This court cannot aid their illegal trespass.

It has been alleged by the 3rd defendant that according to records from lands office the title deed is registered in the names of one Manoham Singh Chawlan. The said person has not come forth to claim such ownership. In any event that is an issue left fro trial.

For the foregoing reasons I shall order that:-

(a)Pending the hearing and determination of this suit there be a temporary injunction against the defendants, their agents, representatives, assigns or any other person acting through their direction from trespassing, conducting prayers upon the land, destroying fence, destroying property or in any way interfering with the plaintiffs parcel number Kisumu Municipality Block 12/ 118.

(b)Cost of this application to the plaintiff.

Dated, signed and delivered at Kisumu this 29th of February 2012

H. K. CHEMITEI

JUDGE

In the presence of:

……………………………………………Advocate for Applicant

……………………………………............……. for Respondent