[2018] KEELC 693 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.782 OF 2017

(FORMERLY CIVIL SUIT NO.1200 OF 1980 - NAIROBI)

RICHARD KARIUKI KAMWENJI...................................PLAINITFF/APPLICANT

-VERSUS-

TERESIA WAITHIRA KARIUKI...............................DEFENDANT/RESPONDENT

RULING

The matter for determination is the Plaintiff’s/Applicant’s Notice of Motion application 25th September 2017, brought under Sections 1A, 1B, 3Aand63(e) of the Civil Procedure Act (Cap 21 Laws of Kenya), Order 51 Rule 1 and all other enabling provisions of law. The Applicant has sought for orders of temporary injunction against the Respondent and/or agents, servants/employees restraining them from entering, trespassing, erecting buildings and/or in any way dealing with the land parcel No.Ndumberi/Ndumberi/738, and costs of the application be in the cause.

The application is supported by the following grounds:-

1) That the Applicant bought 2 acres of the land from LR.Ndumberi/Ndumberi/738 from Zakaria Kimuhu (who was the owner) in the year 1980.

2) That the Applicant paid the whole purchase price and when Zakaria Kimuhu (deceased) delayed in transferring the said 2 acres, the Applicant filed suit at the High Court.

3) That on 22nd May 1980, the court issued a Decree that the deceased Zakaria Kimuhu do transfer 2 acres of parcel of land known as LR.Ndumberi/Ndumberi/738 (which was the subject of the suit) to the Applicant.

4) That the Respondent has encroached on and is developing LR.Ndumberi/Ndumberi/738, causing the Applicant immense suffering, loss and damage.

5) That it is in the interest of justice that the present application be allowed as prayed.

The application is also supported by the affidavit of Richard Kariuki Kamwenji,who averred that the suit herein was between himself and the late Zakaria Kimuhu and the Respondent herein is a stranger to this suit.

Further, that he bought 2 acres of land out of LR.Ndumberi/

Ndumberi/738 from Zakaria Kimuhu who was the owner in 1980 and he paid the whole purchase price. However the said Zakaria Kimuhu delayed in transferring the said 2 acres and Applicant filed the suit. Further, that on 22nd May 1980, the court issued a Decree in his favour and directed the said Zakaria Kimuhu to transfer the 2 acres. However, the Respondent has now encroached on the suit property by developing thereon thus causing suffering, loss and damage to the Applicant. The Court was urged to allow the instant application.

The application is opposed and Teresiah Waithira Kariuki, the administrator of the Estate of Zakaria Kimuhu filed a Replying Affidavit. She averred that the suit land herein LR.Ndumberi/Ndumberi/738, is registered in the name of her late husband and his brothers Njoka Nyaga, John Mbugua NyagaandGeorge Kimuhu Nyaga. Further that the Applicant has unlawfully lodged a caution against the suit land. She admitted that indeed on 22nd May 1980, the Applicant was issued with a Decree in Civil Suit No.1200 of 1980. However the said Judgment and Decree were reviewed by Justice H. G. Platt on 28th February 1983 and the said Judgment was vacated in favour of the Respondent herein as per annexture TWK-3.

Further that todate, the said Order of Justice Platt has never been challenged. She also alleged that upon intervention by the village elders, the Plaintiff/Applicant had agreed to transfer the suit land to her as per the Consent form signed by Kiambu Land Control Board Chairman on 29th July 1987 and marked TWK-4. She urged the Court to dismiss the instant application.

The application was canvassed by way of written submissions which this Court has carefully read and considered. The Court has also considered the instant Notice of Motion application and the annextures thereto.

The application is anchored under Sections 1A & 1B of the Civil Procedure Act, which deals with the overriding objective of the Act which is to facilitate the just, proportionate, expeditiousandaffordable

resolution of civil disputes governed by the said Act.

Further the application is anchored under Section 3Aand63(e) of the same Act which Sections allows the court to make and/or issue such orders that are necessary for the end of justice to be met and to preventabuse of the court process.

There is no doubt that the suit herein was filed in 1980 by the Plaintiff/Applicant against one Zakaria Kimuhu who was a husband to the Defendant/Respondent. There is also no doubt that a Judgment had been entered in favour of the Plaintiff on 22nd May 1980 wherein Zakaria Kimuhu was directed to transfer 2 acres from land parcel No.LR.Ndumberi/Ndumberi/738 to the Applicant. However, the said Judgment was reviewed and vacated on 28th February 1983 as is evident from annexture TWK-3. The Green Card TWK-3also shows that the entry No.5 wherein Richard Kariuki Kamwenji was entered as proprietor of 200/840 shares of the suit land, was vacated on 29th April 1986 and Zakaria Kimuhu & Others were reinstated as proprietors of the suit property.

Further, on 5th November 1997, the Plaintiff/Applicant herein placed a Caution on Zakaria Kimuhu’s share.

There is also no doubt that the file herein was misplaced in the Civil Registry and vide a Notice of Motion application dated 19th June 2017,

the Respondent herein sought to have the file herein reconstructed. However, the Plaintiff/Applicant had opposed the said reconstruction. Further after the application for reconstruction was allowed, the Plaintiff/Applicant filed the instant suit.

The Applicant has alleged that the Respondent has encroached on the instant suit property which he alleges that it belongs to him vide a Judgment of the court issued on 22nd May 1980. However, it is evident that the said Judgment was vacated on 28th February 1983, and the suit property reverted back to Zakaria Kimuhu & Others.

It is evident that temporary injunction is issued when the suit property is in danger of being wasted, alienated and/or disposed off. See Order 40 Rule 1, which provides:-

“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 y g 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.

Also see the case of Noormohammed Janmohammed…Vs…Kassam Ali Virji Madham (1953) 20 LRK 8;-

“the purpose of temporary injunction is to preserve the status quo”.

The suit herein was filed in 1980 and Judgment in favour of the Plaintiff was initially entered on 22nd May 1980. However, the same was vacated on 28th February 1983 and an entry was entered in the Green Card on 29th April 1986, to reflect the said order of reinstatement of the suit property to Zakaria Kimuhu & Others. The Plaintiff/Applicant is therefore not the registered owner of the suit property.

Further, the Plaintiff placed a Caution on the suit property on 5th November 1992 and his alleged interest on the suit property has been protected by the said Caution.

Before the Court file had been reconstructed, which reconstruction was opposed by the Plaintiff/Applicant, the Applicant had not found it fit to seek for temporary orders of injunction. Why did he find it necessary to seek for injunction after the court file was reconstructed and in any event, he had opposed the said reconstruction? The Court finds the instant application is an abuse of the court process and is frivolous.

Further the application goes against the spirit of Sections 1Aand1B of the Civil Procedure Act which empower the court to facilitate the expeditious and affordable resolution of civil disputes before the court. The instant application only serves the purpose of delaying the expeditious disposal of the suit herein which was filed in the year 1980.

The Court after careful consideration of the instant Notice of Motion application dated 25th September 2017, finds it not merited. The said application is dismissed entirely with costs to the Defendant/

Respondent herein.

Further, since the court file was ordered to be reconstructed, the Defendant/Respondent is directed to file all the available pleadings within a period of 14 days from the date hereof. Further the parties should prepare the suit for hearing expeditiously by complying with Order 11 within a period of 30 days after the filing of the relevant copies of pleadings. Thereafter a date for Pre-trial Conference to be taken before the Deputy Registrarof this Court for expeditious disposal of the suit in accordance with Sections 1A & 1B of the Civil Procedure Act. The above are the necessary orders as provided by Section 3A of the Civil Procedure Act which would ensure that end of justice if met and which will prevent abuse of the court process.

It is so ordered.

Dated, Signed and Delivered at Thikathis 23rd day of November2018.

L. GACHERU

JUDGE

23/11/2018

In the presence of

No appearance for Plaintiff/Applicant

M/S Wambui holding brief for Mburu Machua for Defendant/Respondent

Lucy - Court clerk.

Court – Ruling read in open court.

L. GACHERU

JUDGE

23/11/2018