[2021] KEELC 2927 (KLR)

REPUBLIC OF KENYA

IN THE ENVIROMENT AND LAND COURT

AT KAJIADO

ELC CASE NO. 67 OF 2020

PRISCILLA NYAKAIRU MBUGUA....................................................................PLAINTIFF

VERSUS

ISAIAH NGUGI GITAU..............................................................................1ST DEFENDANT

THE LAND REGISTRAR, KAJIADO NORTH DISTRICT....................2ND DEFENDANT

RULING

What is before Court for determination is the Plaintiff’s Notice of Motion application dated the 22nd September, 2020 in which she seeks a temporary injunction restraining the Defendants and any other persons including their agents or representatives from interfering or dealing with land parcel numbers KJD/ OLCHORO ONYORE/ 30398 and KJD/ OLCHORO ONYORE/ 26535 hereinafter referred to as the ‘suit lands’, pending the hearing and determination of the suit.

The application is premised on the grounds on the face of it and the supporting affidavit of PRISCILLA NYAKAIRU MBUGUA where she explains that she entered into a Sale Agreement dated the 14th March, 2018 with the 1st Defendant for the purchase of land parcel number KJD/ OLCHORO ONYORE/ 30398 wherein they performed their respective obligations after which she was registered as proprietor of the said land and acquired title from the 2nd Defendant.

She confirms that she further entered into another Sale Agreement dated the 5th March, 2019 with the 1st Defendant for the purchase of land parcel number KJD/ OL CHORO ONYORE/ 26535 wherein they also performed their respective obligations after which the said land was transferred in the name of Jimmark School Limited, a school she co owns with her husband Paul Waweru and a title issued by the 2nd Defendant. She contends that she has enjoyed quiet possession of the suit lands since the purchase until very recently when she was summoned by the Directorate of Criminal Investigation (DCI) at Kiserian Police Station. Further, she was informed that one James Kamau Munyiri was now claiming ownership of the said properties and alleges that the 1st Defendant fraudulently transferred them to himself. She insists James Kamau Munyiri is unknown to her and she never met him during purchase of the suit lands. She states that she wrote a statement as requested by the DCI explaining how she acquired the suit lands. She filed a complaint under OB NO. 28/ 31/ 8/ 2020 explaining that someone else was alleging ownership of her properties. She reiterates that she has a good title to the two suit lands and that in any event she purchased them after conducting due diligence and ascertaining the legality of title owned by the 1st Defendant.

The Defendants though duly served failed to enter appearance nor file a response to oppose the instant application.

The Plaintiff thereafter filed her submissions to canvass the application.

Analysis and Determination

Upon consideration of the Notice of Motion application dated 22nd September, 2020 including the supporting affidavit and submissions, the only issue for determination is whether the Plaintiff is entitled to an order of a temporary injunction pending the outcome of the suit.

The Plaintiff in her submissions averred that she is a bona fide purchaser for value of the suit lands. She insists she holds Certificates of title to the suit lands; purchased the property for valuable consideration and the 1st Defendant had apparent valid title. Further, that she purchased suit lands without notice of fraud and was not a party to it. She contended that the Respondents will not suffer any prejudice if the orders sought are granted and the balance of convenience tilts in her favour. To buttress her averments, she relied on the following decisions: Joseph Muriithi V Mary Wanjiru Njuguna & Another (2018) eKLR; Katende V Haridar & Company Ltd (2008) 2 EA 173; Giella Vs Cassman Brown & Co. Ltd (1973) EA 358: Mrao Vs First American Bank of Kenya Limited & 2 Others (2003) eKLR; Nguruman Limited V Jan Bonde Nielsen & 2 Others, CA No. 77 of 2012 (2014) eKLR and Pius Kipchirchir Kogo V Frank Kimeli Tenai ( 2018) eKLR.

In line with the principles established in the case of Giella Vs. Cassman Brown & Co. Ltd (1973) EA 358 Iwill proceed to interrogate whether the Plaintiff has established a prima facie case with a probability of success at the trial. In doing so, I will make reference to the case of Mrao Limited Vs. First American Bank of Kenya Limited & 2 others (2003) KLR 125where the court in defining a prima facie case observed that this is a case in which on the materials presented to the court or tribunal, it will conclude there is an apparent infringement of an Applicant’s rights.

It is not in dispute that the Applicant is the registered proprietors of the suit lands. It is further not in dispute the Applicant purchased the same from the 1st Defendant and obtained her certificates of title from the 1st Defendant. The Applicant alleges that a third party is claiming the suit lands and she was summoned to the Kiserian DCI offices. She claims to have further lodged a complaint against the third party claiming her land. I note the Applicant has annexed the Sale Agreements and Certificates of Title. I further note that her averments have not been controverted by the Defendants. On perusal of the documents annexed to the supporting affidavit and the evidence presented and noting that the same is not controverted, I opine that the Plaintiff’s claim is not baseless and in the circumstances find that the Plaintiff has indeed established a prima facie case with a probability of success at the trial.

On the second principle as to whether the Plaintiff stands to suffer irreparable loss which cannot be compensated by way of damages. None of the Defendants has controverted the Plaintiff’s averments. Further, the Plaintiff has demonstrated she purchased the suit land for valuable consideration from the 1st Defendant who has not denied it. She is further in possession of the suit lands. In the case of Case of Nguruman Ltd. Vs. Jan Bonde Nielsen CA No. 77 of 2012,it was held that‘ …the applicant must establish that he ‘might otherwise’ suffer irreparable injury which cannot be adequately compensated remedied by damages in the absence of an injunction, this is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot ‘adequately’ be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy. ‘

Based on the facts as presented, since the Plaintiff is in possession of the suit lands and holds titles to that effect, which titles have not been challenged by the Defendants, I find that her injuries are not speculative and she has indeed demonstrated the actual including substantial loss she stands to suffer if the orders sought are not granted.

On the question of balance of convenience, from the evidence presented by the parties, I am not in doubt that the same tilts in favour of the Plaintiff who holds titles to the suit lands and is in possession thereon.

It is against the foregoing that I find the Notice of Motion application dated the 22nd September, 2020 merited and will allow it. I proceed to make the following orders:

1) The Defendants including their servants, agents and representatives or any other persons be and are hereby restrained from interfering or dealing with land parcel numbers KJD/ OLCHORO ONYORE/ 30398 and KJD/ OLCHORO ONYORE/ 26535 pending the hearing and determination of this suit.

2) The costs of the application will be in the cause

DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 10TH DAY OF JUNE, 2021

CHRISTINE OCHIENG

JUDGE