[2018] KEELC 2787 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC NO 304 OF 2017

THATHINI DEVELOPMENT CO. LTD..................................PLAINTIFF

VERSUS

KHALID ALI JOHO........................................................1ST DEFENDANT

COUNTY GOVERNMENT OF MOMBASA................2ND DEFENDANT

COUNTY DIRECTOR/NEMA........................................3RD DEFENDANT

RULING

1. This is the Notice of Motion dated 23rd August, 2017. It is brought under Article 40, 42 and 70(1)(2)(3) of the Constitution and Order 40, rules 1 & 2 Order 51 of the Civil Procedure Rules, Section 1A, 1B & 3A of the Civil Procedure Act and all other enabling provisions of the law.

2. It seeks orders;

1. Spent.

2. Spent.

3. That permanent order be issued restraining the 1st Respondent, his servants and or agents, assigns from further trespassing, remaining at and or mining, and or murram harvesting in all that parcel of land belonging to the Applicant being Plot No 546 Section II Mainland North pending the determination of the main suit.

4. That costs of this application be provided for.

3. That grounds are on the face of the application and are;

i) That the Applicant is the owner of all that parcel of land known as Plot 546 Section II measuring one thousand one hundred and Eight acres.

ii) That the 1st Defendant/Respondent has illegally invaded the said land and commenced unlawful mining and murram extraction from the said land.

iii) That the effect of the said continued extraction of murram has destroyed and continues to destroy the landscape and ecosystem in the Applicant’s land.

iv) That the said destruction of the ecosystem and landscape has caused irreparable harm and damages to the Applicant.

4. The application is supported by the affidavit of Githende Gichanja one of the directors of the Plaintiff/Applicant sworn on the 23rd august, 2017.

5. Upon being served, the 1st Defendant did not file any memorandum of appearance or response to the Notice of Motion. On 5th October, 2017 interim orders were granted in terms of prayer (2) of the application. The 2nd Defendant/Respondent filed a memorandum of appearance and grounds of opposition. The 3rd Defendant/Respondent did not file any responses.

6. On the 8th November, 2017 it was agreed between the parties that the applicant be disposed by way of written submissions. Each party was given fourteen (14) days to file their respective submissions.

By 19th December, 2017 the 2nd Defendant/Respondent had not filed any submissions and a date for ruling was given.

7. I have considered the Notice of Motion, the supporting affidavit and the annexures. I have considered the grounds of opposition.

8. It is the Plaintiff/Applicant’s case that it is the owner of the suit land. A copy of title and search certificate are annexed. They have also attached the photographs to show the invasion.

9. The 2nd Defendant/Respondent in its grounds of opposition dated 3rd October, 2017 prays that the Plaintiff/Applicant’s Notice of Motion be dismissed as it lacks merit.

10. It is now appropriate to consider the facts that have emerged and the legal principles applicable. The principles were laid down in the precedent setting case of Giella –versus- Cassman Brown And Company Limited (1973) EA 358.

11. In the case of Mrao Limited –versus- First American Bank Limited And 2 Others (2003) KLR 125the Court of Appeal gave a definition what amounts to a prima facie case.

12. Has the Plaintiff/Applicant made out a prima facie case with a probability of success at the trial? It is not in doubt that the Plaintiff/Applicant is the registered owner of the suit property. They have annexed a copy of title and a copy of certificate of search. They have also annexed photographs showing the excavators. Those facts have not been controverted.

13. The 2nd Defendant only filed grounds of opposition. I have considered the same and I find that they do not answer to the specific allegations of encroachment and/or trespass in the Plaintiff’s/Applicant’s application.

14. I find that the Plaintiff/Applicant has demonstrated that they have a prima facie case with a probability of success at the trial.

15. They have also demonstrated that they are likely to suffer irreparable injury that cannot be compensated by an award of damages if these orders are not granted.

16. I find merit in this application and I grant the orders sought namely;

a) that an order be and is hereby issued restraining the 1st Defendant/Respondent, his servants and/or agents, assigns from further trespassing, remaining at and or mining and or murram harvesting in all that parcel of land belonging to the Applicant being Plot No 546 Section II Mainland North pending the hearing and determination of the main suit.

b) That costs of this application do abide the outcome of the main suit.

It is ordered.

Dated, Signed and Delivered atMombasa on the20th dayofMarch 2018.

_____________

L. KOMINGOI

JUDGE

20/3/2018