[2021] KEELC 4623 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC APPEAL NO. E2 OF 2020

RNM..................................... APPELLANT/APPLICANT

VERSUS

RN ALIAS FM..................................1ST RESPONDENT

HKM (Sued as the legal representative of theestate

of SMM ALIAS MI).........................2ND RESPONDENT

RULING

Application dated 29/9/2020

1. The notice of motion dated 29/9/2020 is brought pursuant to provisions of Article 159(2) (d) of the Constitution of Kenya, Section 1A, 1B, 3A and 63 (c) of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 40 Rule 1 and 2 and Order 22 Rule 22 of the Civil Procedure Rules. The applicant/ appellant is seeking an order of temporary injunction restraining the 2nd respondent by himself, agents, servants, representatives, employees and/or anybody else whomsoever acting for and/or on her behalf, from entering cultivating building, depositing building materials or plucking tea bushes in the suit land; and/or from evicting her from the suit land, preventing her from plucking the tea bushes thereon, or in any other manner whatsoever, interfering with the applicant’s user occupation and enjoyment of the suit land; until this application and the appeal are heard and determined.

2. The application is based on the grounds on the face of it and on the supporting affidavit and supplementary affidavit of the applicant, RNM who stated that she got married to the 1st respondent in 1979, that the 1st respondent is the registered owner of Land Parcel No. NYABENE/KIRINDINE ‘*** (Currently subdivided into Land Parcels Nos NYAMBENE/KIRINDINE ‘*****) and that he holds the aforementioned suit parcel in trust for himself, the applicant and their children.

3. Since 1979, she has been in occupation and enjoyment of the suit parcel which she contributed in its acquisition, development and maintenance. On or about 26/10/2018, the 1st respondent colluded with the 2nd respondent where the suit parcel was sold to the 2nd respondent without her consent. As a result, she is unable to cultivate the suit land.

4. The 2nd respondent has started to harass her to the extent of having her maliciously arrested and prosecuted in Maua CM Criminal Case No. 3303 of 2019. She therefore filed a suit at Maua, ELC No. 54 of 2020 against the respondents seeking a declaration that the suit property was matrimonial property.

5. On 13/7/2020 the court issued orders of inhibition and temporary injunction pending the hearing and determination of the subject application. However, the said orders were not extracted and served within 3 days and therefore when she sought re-issuance of the said orders, the court declined on 23/9/2020.

6. She argued that the orders which were issued on 13/7/2020 were never contested and that it was trite law that justice should be administered without regard to technicalities. Therefore, she was entitled to the re-issuance of the said orders. She added that her appeal has high chances of success and therefore prays that the application be allowed in order to maintain status quo.

7. The application was opposed by the respondents vide their respective two sets of replying affidavits. RNM, the 1st respondent stated that he was indeed married to the applicant but they separated and the appellant remarried to a man known as K. The appellant had therefore left his home in 2004. The appellant has her own tea bushes which she is currently cultivating. He added that the suit land was ancestral land which he inherited from his father and it was ironical that the appellant fears being evicted on land that she does not live in. It was his contention that the applicant was indolent as she was granted interim orders which she failed to serve within 3 days and consequently they lapsed.

8. HKM, the 2nd respondent denied harassing the appellant to the extent that she was maliciously arrested and prosecuted in CMC Criminal Case No. 3303 of 2019. He also avers that plaintiff’s suit is defective in line with the provisions of section 6 (2) of the Matrimonial Properties Act.

9. I have carefully considered the application as well as the various affidavits availed by the parties. The issue for determination is whether to grant orders for temporary injunction pending the hearing and determination of this appeal?

10. In the case of Jan Bolden Nielsen vs. Herman Philliipus SteyaAlso known as Hermannus Phillipus Steyn & 2 Others (2012) eKLR, Mabeya J cited Ojwang J (as he then was) in the case of Suleiman vs, Amboseli Resort Ltd. (2004) eKLR 589 as follows:-

“I believe that in dealing with an application for an interlocutory injunction, the court is not necessarily bound tothe three principles set out in the Giella Vs Cassman Browncase. The court may look at the circumstances of the casegenerally and the overriding objective of the law”.

11. The remedy of an injunction has its origin in equity. Thus a court of equity has the discretion to grant or not to grant the orders sought. It follows that even the issuance or re-issuance and/or extension of such orders is not a matter of right even if the orders are not opposed. The court has to consider the circumstances of each case. From the look of things, the primary suit is at the infancy stage. That is not all, there is an ongoing criminal case at Maua court where the current applicant is facing some charges touching on the plucking of the tea leaves. There is hence a need for the courts to interrogate the nature and extent of the utilization of the suit land. The trial court is the one better placed to make a finding on the aforementioned issue.

12. From the proceedings before the lower court, it is apparent that some prayers (2, 4, and 6) were granted at the exparte stage on 13. 7.2020 but they somehow lapsed. The overriding objective of this court as set out under Section 1A of the Civil Procedure Actand the Rulesmade therein is to “facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes”.This court cannot and will not give orders whose effect is to choke or scuttle the criminal and civil proceedings before the trial court. The applicant ought to have made endeavors to have the pending application before the trial court heard on priority basis.

13. In the final analysis, I decline to allow the application dated 29. 9.2020.

Preliminary Objection dated 14/10/2020

14. The respondents contend that the suit should be struck out as the same is fatally defective and cannot be cured as the property in question is Ancestral land and not matrimonial property and therefore offends section 6(2) of the Matrimonial Properties Act. The question is; which suit are the respondents referring to? Is it this appeal or is it the primary suit? This issue has not come out clearly. However, the suit before me concerns the orders issued by the trial court on 23. 9.2020 and nothing more.

15. In the case of Coast Professional Freighters Limited v Welsa Bange Oganda & 2 others [2019] eKLR, the Supreme Court of Kenya declined to grant orders regarding issues which had not been taken up in the Court of Appeal case. Likewise, this court cannot purport to consider the merits of the Preliminary Objection in the court’s original jurisdiction. In the circumstances, the preliminary objection is hereby dismissed.

16. The parties are to bear their own costs in so far as the current application of 29. 9.2020 and the preliminary objection of 14. 10. 2020 are concerned.

DATED, SIGNED AND DELIVERED AT MERU THIS 27TH DAY OF JANUARY, 2021

HON. LUCY. N. MBUGUA

ELC JUDGE

ORDER

The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 22. 10. 2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.

HON. LUCY N. MBUGUA

ELC JUDGE