[2019] KEELC 2869 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAKURU

CASE NO. 313 OF 2015

THUO KARANJA………………………………………………....PLAINTIFF

VERSUS

JACK MBURU KAGOH…………………………………..1ST DEFENDANT

DORCAS MUTHONI KIMANI (Sued as the legal

representative of the estate of Sammy Kimani Demwati)

DEMWATI NJUNGE ……………..…………………..…..2ND DEFENDANT

RULING

1. This ruling is in respect of two applications: Notice of Motion dated 10th October 2015 filed by the plaintiff and 1st defendant’s Notice of Motion dated 28th March 2017. Both parties seek an injunction against each other. In his application, the plaintiff seeks an injunction to restrain the 1st defendant, his agents or servants from entering into, remaining on, mortgaging, charging, selling, transferring or interfering with the plaintiff’s quiet enjoyment of the parcel of land known as LR. No. Dundori/Lanet Block 9/176 (the suit property) pending hearing and determination of this suit.

2. The application dated 10th October 2015 is supported by an affidavit sworn by the plaintiff. He deposed that he purchased the suit property from Sammy Kimani Demwati who is since deceased on 3rd June 2010 but the property was not transferred to him since the deceased was yet to obtain title from the previous owner. He annexed a copy of a sale agreement but which I note to be in respect of a totally different property known as Dundori/Lanet Block 9/181. Though Dundori/Lanet Block 9/176 is mentioned in the said agreement, there is no statement in the agreement that it was the plot which was sold.

3. The 1st defendant responded to the plaintiff’s suit by filing a defence and counterclaim. He also filed a replying affidavit in response to the plaintiff’s application and also filed his own Notice of Motion dated 28th March 2017 in which he seeks an injunction to restrain the plaintiff, his agents, servants or anybody claiming under him from selling, advertising for sale, letting, charging, trespassing upon, entering, remaining on or dealing in whatsoever manner with the suit property pending hearing and determination of this suit.

4. The 1st defendant’s case as is gleaned from his affidavit sworn in reply to the plaintiff’s application and supporting in respect of his own application is that he is the registered proprietor of the suit property having purchased it from the deceased through a sale agreement dated 4th January 2013. He annexed copies of both the agreement and title deed which shows that he became registered proprietor on 2nd April 2013.

5. An order was made that the applications be canvased by way of written submissions. The 1st defendant filed submissions. I see no submissions by the plaintiff. The 2nd defendant did not respond to the applications and did not participate in their hearing. In any case, she is not targeted by any of the orders sought.

6. I have considered the applications, the affidavits filed and the submissions. The principles applicable while considering an application for an interlocutory injunction are settled. An applicant seeking such an order must satisfy the test in Giella –vs- Cassman Brown & Co. Ltd [1973] E.A 358. He must establish a prima facie case with a probability of success. Even if a prima facie case is established, an injunction will not issue if damages can be an adequate compensation. Finally, if the court is in doubt as to the answers to the above two tests then the court will determine the matter on a balance of convenience. As was held by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, all the three Giella conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially and that if prima faciecase is not established, then irreparable injury and balance of convenience need no consideration.

7. As previously noted, though the plaintiff claims to have bought the suit property, the sale agreement that he has exhibited does not bear this out. In the portion where the identities of the purchaser, the vendor, the property sold and the purchase price are narrated, it refers to a totally different property known as Dundori/Lanet Block 9/181. In such circumstances, I see no evidence of any sale of the suit property herein to the plaintiff. On the other hand, the 1st defendant has exhibited a sale agreement that bespeaks a sale of the suit property to him by the deceased. The transaction yielded transfer of the suit property and ultimate issuance of a title deed in favour of the 1st defendant. There is thus no doubt in my mind that the plaintiff has failed to establish a prima facie case while the 1st defendant has succeeded. As a registered proprietor, the 1st defendant is entitled to the protection that the law accords persons who hold registered title. I do not think damages can adequately compensate him.

8. I therefore make the following orders:

a) Notice of Motion dated 10th October 2015 is dismissed with costs to the 1st defendant.

b) I grant an injunction restraining the plaintiff, his agents, servants or anybody claiming under him from selling, advertising for sale, letting, charging, trespassing upon, entering, remaining on or dealing in whatsoever manner with the parcel of land known as LR. No. Dundori/Lanet Block 9/176 pending hearing and determination of this suit.

c) The plaintiff shall bear costs of Notice of Motion dated 28th March 2017.

9. It is so ordered.

10. Ruling herein was to be delivered on 6th February 2019 but was delayed since I proceeded on medical leave. The delay is regretted.

Dated, signed and delivered in open court at Nakuru this 26th day of June 2019.

D. O. OHUNGO

JUDGE

In the presence of:

No appearance for the plaintiff

No appearance for the 1st defendant

No appearance for the 2nd defendant

Court Assistants: Beatrice & Lotkomoi