[2022] KEELC 14786 (KLR)

Progressive Heritage Limited & another v Mbito & 5 others (Environment & Land Case E020 of 2022) [2022] KEELC 14786 (KLR) (14 November 2022) (Ruling)

Neutral citation: [2022] KEELC 14786 (KLR)

Republic of Kenya

In the Environment and Land Court at Kwale

Environment & Land Case E020 of 2022

AE Dena, J

November 14, 2022

Between

Progressive Heritage Limited

1st Plaintiff

Late Jonah Stephen Ng’ang’a

2nd Plaintiff

and

Ramadhan Mbito alias Chairman

1st Respondent

Saidi Mwatsuluka

2nd Respondent

Mwiri Ali Juma

3rd Respondent

Hamisi Ali Gakurya

4th Respondent

Rashid Ali Gakurya

5th Respondent

N.E.M.A

6th Respondent

Ruling

The Application 1. This ruling is subject of the plaintiffs/applicants notice of motion dated April 15, 2022. The same is brought pursuant to the provisions of order 40 rule 1& 2, order 51 rule 1 of the CPR sections 3A and 63 of the Civil Procedure Act and all other enabling provisions of the law. The application is for orders;1. Spent.2. Spent.3. That temporary orders of injunction be issued restraining the respondents whether by themselves, agents, servants and or anyone acting on their behalf or otherwise however from/in any way trespassing ,excavating, fencing, gaining, accessing, selling, alienating, transferring, sub dividing, constructing structures or otherwise dealing in any manner with the suit properties known as Kwale/Tiwi Beach Block/78 to 140[hereinafter referred to as the suit properties]pending inter partes hearing and determination of this application.4. That temporary orders of injunction be issued restraining the respondents whether by themselves, agents, servants and or anyone acting on their behalf or otherwise however from/in any way trespassing, excavating, fencing, gaining, accessing, selling, alienating, transferring, subdividing, constructing structures or otherwise dealing in any manner with the suit properties known as Kwale/Tiwi Beach Block/78 to 140[hereinafter referred to as the suit properties]pending inter partes hearing and determination of this suit.5. That the OCS Kwale Police Station does ensure compliance with the orders above.6. That any other orders that this court may deem fit and just7. That costs of this application be in the cause.

2. The application is based on grounds listed on its face and the supporting affidavit sworn by one Michael Njoroge Ng’ang’a. It is averred that the applicants are the legal registered proprietors of all those parcels of land registered as Kwale/Tiwi Beach Block 78 to 140 measuring approximately 104. 4130 hectares. That the suit properties were purchased in the year 1978 and since then they have enjoyed quiet, peaceful and uninterrupted possession of the properties till on or around 2012 when the respondents jointly through their agents and other persons affiliated to them trespassed on the land built structures and started the excavating of blocks and sand harvesting.

3. The applicants case is that as a result of the respondents actions, the suit properties have been wasted and posed as an environmental hazard. It is deponed that pleas to have the respondents vacate the suit properties have been ignored. That several meetings have been held with the representatives of the respondents and the local authorities with a view of resolving the issue. The applicant states that several complaints have been made with the local administration including the police and correspondence to the relevant authorities but no response has been forthcoming. That as a result of this activities, the development of the proposed Beach Road Diani to Shelly Beach in Likoni has been stalled.

4. The applicants aver that the respondents have threatened its directors of dire consequences if they visit the suit properties thus denying them access, quiet and uninterrupted enjoyment of their land. The court is urged to grant the prayers sought pending the hearing of the application and suit.

Response 5. In opposing the application, the 1st to 5th respondents filed a replying affidavit sworn by Hamisi Ali Gakurya. He avers that the suit properties which were first leased to a Mr. Vaugh by the government in the year 1915 legally expired in the year 2014. That the late Jonah Stephen Ng’ang’a was contracted by Mr Vaugh to construct pathways in Kwale/Tiwi Block/13 which he did while the Respondents remained in occupation. That the late Jonah Stephen Ng’ang’a was not paid for the construction and he therefore forcefully claimed ownership of the suit properties. That the 1st to 5th respondents remained in occupation of the suit property before, during and after the expiry of the lease to Mr Vaugh. That upon such expiry the land reverted to the county government of Kwale is not known how the applicants leased the suit properties after expiry of the parent lease without any regard of the rights of the 1st to 5th respondents.

6. The 1st to 5th respondents state that the applicants lease certificates were obtained fraudulently and illegally. That sometime on or about 2014 and 2015 the 2nd applicant approached the 1st to 5th respondents with an offer of Kshs 100,000/- as an inducement for them to leave the land. That the said respondents were called for a meeting by the 2nd applicant in attendance with the Deputy County Commissioner Matuga Sub County, Assistant Chief, Village Elder and the Chairman representing them. The 2nd applicant was asked to produce the mother title to Kwale/Tiwi Block/13 and to explain how the same was subdivided into the suit properties herein. The 2nd applicant failed to produce the same. that the suit herein is an afterthought actuated by malice as there is a pending suit over the land before the National Land Commission.

7. According to the respondents, the facts as raised in the supporting affidavit to the application are falsified and are misleading to the court. the respondents raise the doctrine of adverse possession as to their ownership of the suit parcels. They deny opposing the construction of the Shelly Beach Likoni to Diani Beach Ukunda Road by KURA and state that it is because they have not been adequately and sufficiently compensated. It is averred that the respondents have been in occupation of the suit property since childhood and the injunctive orders are granted it will cause them untold suffering, loss, damage and prejudice.

Submissions 8. By an order of the court, the application was to be canvassed by way of written submissions. The applicant’s submissions are pegged on the case of Giella v Cassman Brown as to the principles for grant of an injunction. On establishment of a prima facie case, it is submitted that the applicants have provided a bundle of documents in evidence of ownership of the suit property. That article 40 of the Constitution protects and guarantees citizens’ rights to ownership of property which is also envisaged under section 24 of the Land Registration Act No 3 of 2012. The applicants submit that they have established a prima facie case with probability of success.

9. On whether the applicants will suffer irreparable harm if the orders of inunction are not granted. It is submitted that the respondents have denied the applicant access to the land and are doing mining of building blocks and sand as a result. That the land will be wasted and cannot be restored back to its original state. The applicant avers that restoring the land back to its original state will be very expensive. That even in the event that the respondents had demonstrated they are able to compensate the applicants the court would not sit and allow their activities based on the fact that they might be able to compensate the applicant by way of damages. The court is referred to the case of Waithaka v Industrial and Commercial Development Corporation [2001] eKLR.

10. On balance of convenience it is submitted that the applicant has proved all the requirements of grant of orders of injunction pending hearing and determination of the suit. That the same should be allowed.

11. The record does not bear submissions filed by the respondents. On June 29, 2022 Ms Ogoti informed this court that they had not been served with the plaintiffs’ submissions but she undertook to file the defendant’s submissions by July 1, 2022. I granted her up to close of business on July 2, 2022 to do so she did not. The 6th defendant entered appearance but has to date not filed further pleadings in the matter.

Analysis And Determination 12. I have considered the pleadings by both parties and submissions. The applicants seek for orders of injunction and inhibition of the respondents from any interference or use of the suit parcels Kwale/Tiwi Beach Block/78 to 140. I have perused the evidence on record by the affidavits filed herein. The applicants have annexed a copy of the leases for Kwale/Tiwi Beach Block/78 to 140 which indicate that the same are registered in the name of Jonah Stephen Ng’ang’a and Progressive Heritage Limited. The titles were issued on diverse dates. The respondents on the other hand claim that the suit properties belong to them. That they are indigenous people who have inhabited the land since 1914 when it was leased to a Mr Vaugh. It is noted that the respondents have not annexed any documents in evidence of the averments that have been raised in their replying affidavit. As such the same can be termed as allegations as they cannot be established as being factual. However, the court at this interlocutory stage is not able to determine ownership of the disputed parcels as that will be dealing with the substantive issue in dispute.

13. The court has noted the activities on the suit property which are alleged to be by the respondents as raised in the application. I have seen the various correspondence exhibited by the applicants with regards to the occupation and use of the suit property by the respondents. The respondents have not denied being in occupation of the suit property and claim adverse possession.

14. I think the duty of this court is to first preserve the suit property in view of the ongoing activities. The ELC is mandated by section 3 of EMCA to give directions it may deem appropriate to prevent, stop or discontinue any act that is harmful to the environment. The photographs annexed show the excavation activities and which as stated lead to degradation of land. The activities if not regulated will eventually cause irreparable loss and damage on the suit property. The application is brought under the provisions of order 40 of the Civil Procedure Rules whose main objective is to preserve the subject matter. It stipulates as follows; -“[Order 40. Rule 1] Cases in which temporary injunction may be granted.1. 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 execution of 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.”

15. I have noted that the applicants have deponed that there are permanent structures that have been built on the suit property by the respondents and their agents for both commercial and residential use. For this reason, the orders that shall issue herein shall not extend to these developments. This court is being categorical that no one should be evicted from the suit premises pending the determination of the ownership herein since the title is being contested both on allegations of fraud as well as adverse possession which in my view should await the hearing of this suit. It is imperative that this places responsibility upon the respondents and their agents from constructing new structures or in any way alienating the land effective the date of service of the orders that shall issue herein.

16. Having stated the foregoing, the following orders shall issue to dispose of the notice of motion dated April 15, 2022;i.Pending the hearing and determination of this suit, the 1st to 5th respondents herein whether by themselves, agents, servants and or anyone acting on their behalf are hereby stopped from excavating, mining of building blocks and sand from the suit property Kwale/Tiwi Beach Block/78 to 140, selling, alienating, transferring, subdividing, constructing further structures and or developments in the suit properties known as Kwale/Tiwi Beach Block/78 to 140. ii.The orders above shall in no way be construed to mean eviction of the occupants of the structures as stated in paragraph 15 of this ruling.iii.That the OCS Kwale Police Station does ensure compliance with the orders above.iv.Costs shall be in the causeIt is so ordered.

DELIVERED AND DATED AT KWALE THIS 14TH DAY OF NOVEMBER, 2022AE DENAJUDGERuling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:Mr Mungai plaintiffs/applicants.No appearance for 1st – 5th defendants.No appearance for 6th defendant.Mr. Denis Mwakina- court assistant.