[2024] KEELC 5290 (KLR)

Postal Corporation of Kenya v Hassan Kombo Budugu t/a Budugu & Company & 2 others; National Land Commission & 2 others (Interested Parties) (Environment & Land Case E137 of 2022) [2024] KEELC 5290 (KLR) (17 July 2024) (Ruling)

Neutral citation: [2024] KEELC 5290 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case E137 of 2022

SM Kibunja, J

July 17, 2024

Between

Postal Corporation of Kenya

Plaintiff

and

Hassan Kombo Budugu t/a Budugu & Company

1st Defendant

Nova Holdings Limited

2nd Defendant

Aharab Ebrahim Khatiri

3rd Defendant

and

National Land Commission

Interested Party

Chief Land Registrar

Interested Party

Director of Survey

Interested Party

Ruling

1. The plaintiff moved the court through the notice of motion dated the November 14, 2022 seeking for orders inter alia:a.That pending the hearing and determination of this suit, an injunction be issued, restraining the defendants jointly and severally from interfering with the plaintiff’s quiet possession of all that property originally known as plot No. MN/1/683, including the illegally subdivided portion known as L.R. No. MN/1/12406–7. b.That pending the hearing and determination of this suit, an injunction be issued, restraining the defendants from constructing a house and or in any way whatsoever interfering with all that property originally known as plot MN/1/683, including the illegally subdivided portion known as L.R.No. MN/1/12406–7. c.The OCS, Nyali Police Station to enforce the orders issued.The application is based on the nineteen (19) grounds on its face and supported by the affidavit of Horace Avedi, Assistant Manager Facilities, sworn on the November 14, 2022, in which he inter alia deposed that the plaintiff has been the owner of plot MN/1/683, suit property, from 1999, and before then it was owned by its predecessors; that the plaintiff had constructed a building housing Nyali Post Office on the suit property and has therefore been in occupation; that the plaintiff has come to know that the suit property was illegally and without its authority subdivided on or about November 2001 into MN/1/12406/ and 124067, and a portion thereof measuring 0. 1714 allotted to the 1st defendant, and grant No. I.R.35009 for 99 years from November 1, 2001 issued; that the said portion was then transferred to the 2nd defendant on or about January 2, 2002 and then, on 8th April 2008 to the 3rd defendant; that vide lease dated January 19, 2021, the plaintiff leased the suit property to Ultimate General and Engineering Limited, who were blocked from accessing it by the 3rd defendant; that on or about July 2021, the 3rd defendant trespassed onto the said property, fenced it off and commenced a construction without the plaintiff’s authority; that the plaintiff reported to EACC, Police and NLC and consequently filed this suit.

2. The 3rd defendant entered appearance through Ms. Oluga & Company Advocates vide the notice of appointment of advocates dated December 7, 2022.

3. That vide notice of motion dated the June 27, 2023, the plaintiff applied for, and was granted leave on September 19, 2023 to serve the 1st and 2nd defendants with the suit papers through advertisement. The service was effected through the Daily Nation Newspaper of October 25, 2023, and affidavit of service by Elna Mudibo sworn on October 31, 2023 filed.

4. The 2nd defendant entered appearance through Ms. Muthee Kihiko & Associates Advocates vide the notice of appointment of advocates dated the October 12, 2023. The 2nd defendant opposed the application through the replying affidavit sworn by Ashok Labhshanker Doshi, a director, on the 15th January 2024, inter alia deposing that the plaintiff is neither the registered nor beneficial owner of the suit property and hence lacks capacity to institute and prosecute this suit; that the Post Office building is on L.R. No. MN/1/12406 which is distinct from L.R. No. 12407, which the 2nd defendant had regularly obtained from 1st defendant and subsequently sold to the 3rd defendant; that as the cause of action arose in 1999, the plaintiff’s suit is time barred under section 7 as read with section 26 of the Limitation of Actions Act; that the original parcel from which the suit property emanated from, was registered with Nyali Limited which has not been joined in the suit and the application should be dismissed with costs.

5. The court issued an order of status quo to be maintained, on the November 21, 2022, which was extended on the December 8, 2022 and March 23, 2023. The court further issued directions on filing and exchanging submissions on the 22nd January 2024 and 8th April 2024. The learned counsel for the plaintiff and 2nd defendant filed their submissions dated the 15th April 2024 and 3rd May 2024 respectively, which the court has considered. The 3rd defendant indicated through counsel that he will rely on the replying affidavit and submissions filed by the 2nd defendant.

6. The following are the issues for determination by the court:a.Whether the plaintiff has met the threshold for the injunction orders sought to issue at this interlocutory stage.b.Who pays the costs?

7. The court has carefully considered the grounds on the notice of motion, affidavit evidence by the plaintiff and 2nd defendant, submissions by the two learned counsel, superior courts decisions cited thereon, and come to the following findings:a.Both learned counsel have submitted on the threshold an applicant like the plaintiff, seeking injunction orders at the interlocutory stage must meet to succeed. They have both cited several superior courts decisions on the applicable tests including Giella v Cassman Brown [1973] EA 358, Nguruman Limited v Jan Bonde Nielson & 2others [2014] eKLR, Mrao Limited v First American Bank of Kenya Limited (2003) eKLR, John Daniel Muiyuro v Nicodemus Migiro [2014] eKLR, Japheth Bore v Rhoda Chebon [2017] eKLR, Hezron Kamau Gichuru v Kianjoya Enterprises Limited &another [2022] eKLR, Dina Management Limited v County Government of Mombasa & 5others SCOK Pet. No. 8 (E010) of 2021, Kuria Kiarie & 2others v Sammy Magera [2018] eKLR, and Ngugi v Towett & 4others (Civil Appeal 38 of 2019 [2024] KECA 362 (KLR). It is trite from the above precedents that the tests includes the existence of a prima facie case with a probability of success, irreparable loss which would not adequately be compensated by an award of damages, and where the court is in doubt, the balance of convenience.b.The court will therefore embark in assessing and analysing the affidavit evidence presented by the two parties, and submissions by their counsel to find out whether the plaintiff has met the set threshold to be found deserving of the two injunction orders sought. That while doing so, the court must remind itself that it is not expected to make any final or exhaustive determinations on any issues of law and fact at this stage, as that has to wait for the parties to present their evidence in the main suit, when witnesses will be cross examined and re-examined and thereafter, the court will render its judgement on merit, on all the issues raised for determinations.c.That the plaintiff’s case is that it became the registered owner of plot L.R. No. MN/1/683, through legal notice No. 156 of 1999, marked HA-3, that is attached to the supporting affidavit. I have perused the said legal notice, which is headed “Transfer and Vesting of Assets and Liabilities-The Postal Corporation of Kenya” and at number 63 of the annexed schedule is the property described as “MSA/SEC 1/683”. The plaintiff’s title to the said land has been disputed by the 2nd defendant who has attached to his replying affidavit a letter dated October 3, 2023 to the Chief Registration Officer, Mombasa Land Registry, seeking details of the land and ownership of C.R.No. 8508, and a reply thereof dated 17th October 2023, indicating that the said “CR.8508 is the registration of plot No. 67 Section 1 Mainland North owned by Nyali Limited” and that “the plot has since been subdivided into several subdivisions thereby ownership of CR 8508 does not exist.”d.I have also perused the documents attached to the plaintiff’s supporting affidavit and noted the lease agreement marked HA-6b at paragraph “A” describes the plaintiff as “the registered owner by Grant of all that piece of land known as Title Number Msa 1/683 situate in Mombasa County in the Republic of Kenya containing measurement approximately 0. 99 acres comprised in a certificate of title dated 13. 12. 1932 and registered in the Registry of Titles at Mombasa as No. C.R. 8508/1 and with dimensions, abuttals and boundaries thereof as delineated on Land Survey Plan No. 32618 hereinafter described as The Nyali Post Office Property.” That the 2nd Defendant depositions, specifically at paragraph 10 to 12 of the replying affidavit, inter alia that MN/1/683 was never registered in the name of the plaintiff or its predecessors, but in that of Nyali Limited, and it has since subdivided it into several subdivisions, has not been challenged or rebutted through an affidavit by the plaintiff. That deposition creates reasonable doubts as to the foundation of the plaintiff’s claim of title, and the court finds it has failed on the test for establishing a prima facie case.e.On whether or not the plaintiff will be exposed to irreparable loss, should the injunction orders not be granted at this stage, not much has been presented to the court except the income it would have accrued from leasing the land to Ultimate General and Engineering Limited. That loss or damage can be ascertained in financial terms, and an award made in compensation, should the plaintiff be victorious at the end of the trial. It is therefore not an irreparable loss. The balance of convenience tilts against issuing the injunction order at this time.f.Noting that the order for the parties to maintain status quo has been in force from the 21st November 2022, the court finds it is for the convenience of all claimants to the suit property herein for that order to continue in force, pending the hearing and determination of this suit.g.Though section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya provides that costs follow the events unless where for good reasons the court directs otherwise, I am of the view that justice in the case will better be served with an order that the costs in the application do abide the outcome of the suit.

8. That having come to the above determinations on the application dated the November 14, 2022, the court finds and orders as follows:a.That the application has no merit and is hereby dismissed.b.That the costs of the application to abide the outcome of the suit.c.The parties are nevertheless to maintain status quo obtaining today on the suit property to enable the suit proceed to the main hearing without the need for other interlocutory applications being filed, thereby occasioning more delays.Orders accordingly.

DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 17TH DAY OF JULY 2024. S. M. KIBUNJA, J.ELC MOMBASA.In The Presence Of:Plaintiff: Mr. Kiprono for MbogoDefendants: Mr Mutugi for 2nd DefendantInterested Parties: Mr. Kilonzo for 3rd DefendantLeakey – Court Assistant.