[2017] KECA 767 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: GITHINJI, NAMBUYE & KANTAI, JJ.A.)

CIVIL APPEAL NO. 30 OF 2014

BETWEEN

TOM ONYANGO.......................................................................APPELLANT

AND

MIMOSA INVESTMENTS LIMITED......................................RESPONDENT

(An appeal from the Ruling of the High Court of Kenya at Nairobi (Mutungi, J.) delivered on 20thSeptember, 2013

in

H. C. ELC. NO. 812 of 2012)

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JUDGMENT OF THE COURT

[1] This is an appeal from the Ruling of the High Court, Land and Environment Division (Mutungi, J.) The Constitution establishes the High Court and confers it with jurisdiction (Article 165). The Constitution, in addition, authorises the Parliament to establish courts with the status of the High Court to hear and determine disputes relating, inter alia, to the environment and the use and occupation of and title to land (Article 162(2)(b). The Land and Environment Court has been established and judges appointed to that court including Mutungi, J. who heard and determined the application which resulted in the ruling under appeal.

Thus the proceedings should have been instituted in the Land and Environment Court and properly titled. The ruling appealed from granted prohibitory and mandatory injunctions against the appellant relating to occupation and use of land parcel L.R. No. 1870/V/63 comprising of 0. 2158 hectares and situated in Westlands Nairobi (suit property).

[2] By a plaint filed on 8th November 2012, the respondent averred that it was the

proprietor of the suit property; that it granted a revocable license to one Ashok Sood to occupy the land and dwelling houses erected thereon; that the licensee illegally and without a colour of right licensed the appellant to live with him on the suit property where the appellant occupied the servant quarters of the main house; that the licencee died on or about 14th September, 2011; that after the death of the licensee the respondent tried on diverse occasions to peacefully eject the appellant but the appellant vehemently opposed the ejection, issued threats of violence to anyone who tried to eject him from the suit property, and has harassed and abused the tenants. The relief sought in the suit includes vacant possession, mesne profits and general damages.

[3] The appellant filed a statement of defence denying that the respondent was the registered proprietor of the suit property and asserting that the registered proprietor was Ashok Kumar Sood who was his employer for a long time. In addition, the appellant averred, inter alia, that in the month of August 2011, Ashok Kumar, informed him that he would leave for India for medical treatment; that he would leave with the appellant the title to the suit property which Mr. Sood was considering transferring to the appellant as a gift in gratitude for all the kindness that the appellant had accorded to him, that Mr. Sood left him with his pin number, identity card and passport size photographs and that Mr. Sood died before he had the opportunity to transfer the title to him. He denied that he was a trespasser on the suit property but admitted that he resisted the appellant’s attempt to evict him. He prayed that the suit be dismissed and sought an order directing the Registrar of Lands to register the suit land in his name.

[4] The respondent subsequently filed an interlocutory application seeking an injunction restraining the appellant from destroying the suit property, putting up temporary structures and cutting down trees, pending the determination of the suit. Further, the respondent sought a mandatory injunction compelling the appellant to remove illegal structures and immediately vacate the suit property. The application was allowed giving rise to the appeal.

The application for interlocutory injunction was supported by the affidavit ofAnil Mandal, a director of the respondent. Attached to the supporting affidavit was an indenture made on 23rd February 1989 between Nationwide Finance Company Limited and Mimosa Investments Limited. It shows that the suit land was a leasehold for 99 years from 1st April 1904 and the owners, Omar Sheikh Ali and Yunis Sheikh Ali had mortgaged the property to Nationwide Finance Company Limited which in turn, by the said indenture, sold the property to Mimosa Investments Limited in exercise of the mortgagees power of sale. Also attached to the supporting affidavit dated 1st November 2006, I.R. No. 104581 was a Grant, pursuant to the renewal of the lease to Mimosa Investments Limited for a further term of 50 years from 1st March 2004.

[5] The appellant filed a replying affidavit to which he annexed Grant No. 104581 dated 1st November 2006 in the name of Ashok Kumar Asood. In response, Anil Mandal filed two supplementary affidavits while the appellant filed a further affidavit. By the supplementary affidavit sworn on 14th June 2013, Anil Mandal annexed various documents including a letter dated 23rd January 2013 from the Chief Land Registrar’s Office indicating that the registered proprietor of the suit property registered as grant IR 104581/1 is the respondent, and a further letter dated 13th February 2013 from the same office stating that the title indicating that Ashok Kumar Sood as the registered proprietor is a forgery and did not originate from that office. [6] After considering the dispute, Mutungi, J. reached the following conclusion:

“I do not appreciate how the defendant can sustain this action unless he is claiming pursuant to a contract and/or by virtue of being a beneficiary and in that case he would need to have taken out letters of administration to the deceased’s estate. My view is that the defendant cannot have an answer to the plaintiff’s claim. Whereas the plaintiff’s prayer under the notice of motion are in the nature of mandatory injunctions, I am inclined to grant the orders sought as I am satisfied that the plaintiff is indeed the true and lawful owner of the suit premises and that the plaintiff’s case is plain and clear. The defendant cannot demonstrate his right to entitlement of suit property. Prima facie, the plaintiff has shown they are the registered owners of the suit property, a position that has been fortified by Ministry of Lands Officers who are charged with maintaining the land records. I am not satisfied that any purposes will be served by delaying the determination of the issues to any later stage as suggested by the defendant.”

[7] The three main grounds of appeal can be condensed. The appellant’s grievance is in essence, that the learned judge erred in law and in fact by making an erroneous final determination on the ownership of the suit property at the interlocutory stage, and by relying on unauthenticated documents in a sensitive land dispute thereby prejudicing the appellant’s defence. The appellant also complains that the learned judge erred in law and in fact by faulting the appellant for not having applied for letters of administration when he was merely a defendant in the suit.

[8] The respondent has filed a notice of grounds for affirming the decision appealed from under Rule 94 of the Court of Appeal Rules.By Rule 94, such a notice is required to be filed where a respondent desires to contend that the decision appealed from should be affirmed on grounds other than, or additional to those relied upon by the court from which the appeal has been filed. However, a perusal of the grounds stated in the notice show that the High Court relied on those grounds to reach its decision and are not therefore grounds which the High Court failed to consider or additional grounds. Rather, the grounds in the notice are merely a reply to the grounds of appeal raised by the appellant and will be treated as such.

[9] Mr. Were, the learned counsel for the appellant has, in his written and oral submission, referred to the principles for granting interlocutory and mandatory injunctions and cited relevant authorities including Stephen Kipkebut t/a Riverside Lodge and Rooms v. Naftali Ogola[2009] eKLR;Alex Wainaina t/a John Commercial Agencies v. Janson Mwangi Wanjihia[2015] eKLR;Vivo Energy Kenya Limited v. Maloba Petrol Station Limited & 3 Others [2015] eKLR andOlive Mwihaki Mugenda & Another v. Okiya Omtata & 4 others [2016] eKLR. He submitted that the principles stated in those authorities were ignored by the High Court; that the facts stated in the appellant’s replying affidavit were not disputed; that the issues of fraud raised by both parties should strictly be proved at the trial and that the authenticity of the documents relied upon by the High Court could only have been determined at the trial after cross-examination of witnesses.

[10] On the other hand, Mr. Arwa learned counsel for the respondent, amongst other things, submitted that the learned judge exercised his discretion within the law as he was presented with a very clear case which did not need a full trial for an award of mandatory injunction; that the evidence established that the respondent had title to the suit property and that the appellant had no title or any documents that could confer on him an interest in the suit property; that the validity or authenticity of documents produced by the respondent was never challenged by the appellant and that the question whether or not the appellant had letters of administration to the estate of Ashok Sood did not affect the decision of the High Court in any way. He relied on three authorities on the principles for granting a mandatory injunction at an interlocutory stage namely; Kenya Breweries Limited v. Washington Okeyo [2002] 1EA 109; Hassan v. Nadhit Jama Adan [2006] eKLR and Maher Unissa Karim v. Edward Oluoch Odumbe[2015] eKLR.

[11] The principles for granting mandatory inunctions at an interlocutory stage are not in dispute. It is the application of those principles in the context of the case which is in contention As the authorities cited by the respective counsel show, a mandatory injunction may be granted on an interlocutory application as well as at the hearing but in the absence of special circumstances, it will not be normally granted. It may be granted in clear cases where, inter alia, the court is satisfied that the matter ought to be decided at once or where the circumstances are such that the court is satisfied that the case is unusually strong and clear. In exceptional cases, the court has discretion to grant an interim relief although it amounts to granting the final relief itself prayed in the suit.

[12] It is clear from the passage of the ruling of the High Court quoted above that the learned judge was aware of the applicable principles when he rendered the impugned decision.

[13] The appellant’s contention that the High Court conclusively determined the issue of ownership of the suit property at an interlocutory stage is correct. The learned judge indeed made a finding that the respondent is the true registered owner of the suit property; that Ashok Kumar Sood was at best a licensee of the respondent and that the appellant had determined to use unscrupulous means to wrestle the property from the true owner.

However, those findings must be considered in the context of the dispute disclosed by the pleadings.

[14] We have already referred to the defence raised by the appellant in his statement of defence. The pleadings do not disclose a real dispute over ownership of the suit property between the appellant and Ashok Kumar Sood or his estate. The estate of Ashok Kumar Sood is not a party to the suit. It is the appellant – a third party, who has raised the dispute. In the absence of a will by Ashok Kumar Sood appointing the appellant as the executor or a grant of letters of administration to the estate of Ashok Kumar Sood, the appellant has no legal capacity to assert a claim of ownership of the suit property on behalf of or for the benefit of the estate of Ashok Kumar Sood. The suit property being private land, the appellant in his personal capacity had no locus standito question the validity of the respondent’s title.

[15] Further, the pleadings did not show that the appellant has a proprietary interest in the suit property. All the appellant said, in essence was that he occupied the land by virtue of contract of employment and that his employer was considering giving the suit land to him as a gift but died before he executed the transfer. The contract of employment and therefore his right to occupy the land was terminated by the death of his employer. Although the appellant denied it, there was ample evidence supported by documents including a cheque encashed by the appellant and a letter from a bank that the appellant renounced any claim after he was paid Shs. 80,000/- by Anil Mandal as his terminal dues.

[16] The real intention of the appellant is clear from his prayer in the statement of defence. He sought an order directing the Registrar of Lands to register the suit property in his name. Yet, he did not file a formal counter-claim joining the estate of Ashok Kumar Sood as a party and disclosing the basis of his claim to be registered as the proprietor

[17] This Court would have been more concerned with the final and conclusive findings of fact at an interlocutory stage made by the High Court if the dispute of ownership of the suit property was between the respondent and the estate of Ashok Kumar Sood or if the findings would prejudice the estate of Ashok Kumar Sood in any future proceedings. However, as Ashok Kumar Sood or his estate is not a party to the suit which gave rise to the ruling under appeal, a plea of res-judicata under section 7 of the Civil Procedure Act would not succeed against his estate in any future proceedings.

[18] The learned judge was satisfied that the respondent’s case was plain and clear. He was not satisfied that any purpose would be served by delaying the determination of the issues. Having regard to the state of the pleadings and the peculiar circumstances of the case, we are satisfied that special circumstances existed for granting a mandatory injunction at an interlocutory stage, although it amounted to granting a final relief.

[19] For the foregoing reasons, the appeal is dismissed with costs to the respondent.

Dated and delivered at Nairobi this 17thday of February, 2017.

E. M. GITHINJI

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JUDGE OF APPEAL

R. N. NAMBUYE

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true copy of the original

DEPUTY REGISTRAR