[2025] KEELC 4432 (KLR)

Zaf Holdings Limited v Twigs and Bossom Limited & 11 others (Environment & Land Case E066 of 2025) [2025] KEELC 4432 (KLR) (12 June 2025) (Ruling)

Neutral citation: [2025] KEELC 4432 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E066 of 2025

CG Mbogo, J

June 12, 2025

Between

Zaf Holdings Limited

Applicant

and

Twigs And Bossom Limited

1st Respondent

Godfrey Nasibi Ndolwa

2nd Respondent

Mohamed Ali Anshuru

3rd Respondent

Joel Simel Tumpes

4th Respondent

Philip Tumpeine Saiyuah

5th Respondent

Joseph Kuyan

6th Respondent

Benjamin Lemasei Tumpes

7th Respondent

William Gacheru Mwangi

8th Respondent

Daniel Letomir

9th Respondent

Raphael Lorionka

10th Respondent

Chief Land Registrar

11th Respondent

Director of Survey

12th Respondent

Ruling

1. Before me is the notice of motion dated 24th February 2025, filed by the plaintiff/applicant, and it is expressed to be brought under Section 1a & 3A of the Civil Procedure Act and Order 51 Rule 1 and Order 3 (sic) of the Civil Procedure Rules seeking the following orders: -1. Spent.2. That pending the hearing and determination of this application the defendants/ respondents by themselves, their servants, agents or otherwise howsoever be restrained by way of an interim temporary injunction from entering, trespassing, destroying, allocation, registration, trading in, offering to sell, subdividing, evicting and more so interfering in any manner with the plaintiff’s parcel of land known as L.R. Nos. 209/14069. 3.That pending the hearing and determination of this suit the defendants/ respondents by themselves, their servants, agents or otherwise howsoever be restrained by way of a mandatory injunction from entering, trespassing, destroying, allocation, registration, trading in, offering to sell, subdividing, evicting and more so interfering in any manner with the plaintiff’s parcels of land known as L.R. Nos. 209/ 14069. 4.That the OCPD Langata Police Station do provide adequate security and ensure peace prevails as they help executing the above orders.5. That the costs of this application be provided for.

2. The application is premised on the grounds inter alia that the plaintiff/applicant is the registered owner of land known as LR. Nos. 209/14069, the suit property. The application was supported by the affidavit of Karim Ramzanali Karmali sworn on even date. Through his affidavit, the plaintiff/ applicant deposed that it purchased the suit property and since the year 2003, it has enjoyed peaceful possession until the year 2018 when the 5th to the 7th defendants/respondents fraudulently conspired to obtain the orders of mandamus in HCC ELC Misc Appl. (JR) No. 48 of 2018. The plaintiff/applicant deposed that the 1st to 4th defendants/respondents who are well known to the 5th to 7th defendants have embarked on an illegal scheme to grab its land, in conspiracy with officers of the 11th and 12th defendants/respondents.

3. The plaintiff/applicant further deposed that the 3rd and 4th defendants/respondents are directors of the 1st defendant/respondent who is the beneficiary of the illegal allotment, and that the 8th defendant/respondent is in possession of certificate of titles said to be a subdivision of the suit property. It was deposed that in a letter dated 25th November, 2024 the Registrar of titles confirmed that the suit property is registered and owned by the plaintiff/applicant, and further, that its advocate has been pursuing cancellation of the illegal subdivision in vain, and that whereas the plaintiff holds the original title, it is unable to transact until the same is converted to the new ardhisasa block number. The plaintiff/applicant deposed that it is in the interest of justice that the application be allowed.

4. The application was opposed by the replying affidavit of Leah Florah Pilanoi sworn on 10th March, 2025 on behalf of the 6th defendant and her late husband who is the 7th defendant/respondent in this matter. Leah deposed that the 6th defendant/respondent and her late husband were jointly allocated the suit property through IR. No. 45484 and were issued with a certificate of title. She deposed that after the issuance of the title, they asserted ownership by putting up structures, paying outstanding arrears and employing guards to look after the property. She further deposed that the documents served upon them fail to observe due process enacted for removal of persons perceived as trespassers. She further deposed that in JR No. 18 of 2018, the subject matter in that suit was ownership and possession of the suit property where similar contentions were raised. Further, that there is ambiguity and fraudulent camouflage of very pertinent and material facts for vacant possession of the suit property for the reason that the transfer of the suit properties between the plaintiff/applicant’s company is debunked and contradicted by evidence. She questioned the IR numbers and the land reference numbers of the transfer made by Diamond Trust Bank to Shimba Tourist Service Limited.

5. Leah further deposed that the plaintiff/applicant has not demonstrated what transpired to parcel of land known as LR. No. 209/12000 transferred to Bugstar Trading Company by Diamond Trust Bank under grant of title I.R. 60458 and IR. No. 211736. She deposed that the alleged loss of grant no. IR 60458 did not lawfully entitle the Land Registrar to issue the plaintiff/ applicant with a new grant of title no. IR. 221736 with an entirely different land reference number.

6. Leah Florah Pilanoi filed a supplementary affidavit sworn on 25th April, 2025 supplying a copy of the certificate of grant of title for IR 45484.

7. The application was canvassed by way of written submissions. The plaintiff/applicant filed its written submissions dated 9th May, 2025 where it raised the following issues for determination: -i.Whether the plaintiff/applicant has established a prima facie case with probability of success.ii.Whether the plaintiff/applicant is likely to suffer irreparable loss if the injunction is granted.iii.Whether the balance of convenience is in the plaintiff/applicant’s favour.iv.Whether the suit property namely, LR. No. 209/14069 is likely to be wasted/ disposed of to a third party.v.Whether the plaintiff/applicant’s legal right to the suit property is being infringed.vi.Whether the deponent has capacity to file pleadings/responses/appear on behalf of the respondents.

8. On the first issue, the plaintiff/applicant submitted that it has tendered satisfactory evidence to demonstrate that it is deserving of the orders as per the leading case of Giella v Cassman Brown [1973] EA 358 and Mrao Limited v First American Bank of Kenya [2003] KLR 125. Further, it was submitted that it is a settled principle that a title document is the prima facie evidence of ownership, and that the plaintiff/applicant holds a valid certificate of title.

9. On the second issue, the plaintiff/applicant submitted that it has been in quiet and peaceful possession of the suit property since 2003 until the illegal and forceful entry by the defendants/respondents. That as the registered owner of the suit property, it reserves the right to have its interests protected by this court. Further, that the defendants/respondents have encroached and unless the injunction sought is granted, it is likely to suffer injuries which cannot be redressed by an award of damages. Reliance was placed in the cases of Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR and Niaz Mohammed Janmohammed v Commissioner for Lands & 4 Others [1996] eKLR.

10. On the third issue, it was submitted that it is in the interest of justice that the court grants the orders to protect its legally acquired investment from any interference by the defendants/ respondents. The plaintiff/ applicant relied on the case of Bryan Chebii Kipkoech v Barnabas Tuitoek Bargoria & another [2019] eKLR.

11. On the fourth and fifth issues, the plaintiff/applicant submitted that the 1st to 7th defendants/respondents have been making offers to sell the suit property to innocent third parties, and that unless this court acts, this suit will be rendered nugatory. On the sixth issue, it was submitted that Leah Florah Pilanoi Lemasei lacks capacity to represent the 7th defendant/respondent and any other party as the grant ad litem was only limited to prosecuting ELC No. 43 of 2017. The plaintiff/applicant urged this court to treat the application as one without a response.

12. The 6th and 7th defendants/respondents filed their written submissions dated 25th April, 2025. In their submissions, the 6th and 7th defendants/respondents reiterated the averments in their replying affidavit. While relying on the case of Twiga Chemicals Industries Ltd v Allen Stephen Reynolds [2014] eKLR, the 6th and 7th defendants/respondents submitted that the plaintiff/applicant has not had possession of the suit property, and that the orders for vacant possession are not sustainable in light of Section 4 (2) of the Limitation of Actions Act and Section 28 of the Land Registration Act. While challenging the title held by the plaintiff/ applicant, they submitted that the registrar acted unlawfully in cohorts with the plaintiff/applicant, thereby violating their fundamental rights in regards to equal protection of the law.

13. In conclusion, the 6th and 7th defendants/respondents prayed that the suit be struck out with costs to the 4th, 5th, 6th and 7th defendants/respondents.

14. I have considered the application, the reply thereof and the written submissions filed by the respective parties. The issue for determination is whether the plaintiff/applicant has met the requirements for the grant of the orders of injunction.

15. First and foremost, I need to get a fundamental issue out of the way before I delve further into the merits of the application. Leah Florah Pilanoi filed the replying affidavit in response to the instant application on behalf of the 7th defendant/respondent said to be her deceased husband and the 6th defendant/respondent. In support thereof, she attached Limited Grant of Letters of Administration Ad Litem dated 22nd July, 2021. On the strength of this document, the said Leah was convinced that she had capacity to represent the estate of her late husband in this suit. Equally, the plaintiff/applicant did not contend with this issue, and unprocedurally raised the same in their written submissions.

16. Section 54 of the Law of Succession Act provides as follows:“A court may, according to the circumstances of each case, limit any grant of representation which it has jurisdiction to make, in any of the forms described in the fifth schedule to this act.”

17. Also, paragraph 14 of the fifth schedule of the Law of Succession Act provides that: -“When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.”

18. Taking into consideration the above proviso, Leah was only issued with limited grant of letters of administration which was limited only for purposes of defending or prosecuting ELC No. 43 of 2017. The grant was quite specific to the task, and it could not be utilized in any other proceedings to accommodate the interpretation of paragraph 14 above. It was incumbent upon Leah to obtain a grant to represent the estate of her late husband in this suit. As it is, she is not properly before the court to defend the estate of her late husband and the 6th defendant/respondent.

19. Without a proper response on record by the 6th and 7th defendants/ respondents, it is quite obvious to find that the application is not opposed. But, does the application merit the orders? The requirements for the grant of an interlocutory injunction was set out in the case of Giella versus Cassman Brown & Co. Ltd [1973] EA 358 where it was stated:-“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience (E.A. INDUSTRIES VS. TRUFOODS [1972] E.A. 420. )”

20. A prima facie case was described in the case of Mrao Ltd versus First American Bank of Kenya Ltd & Others Civil Appeal No. 39 of 2002, as:“In civil case, it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has been infringed by the opposite party as to call for an explanation or rebuttal from the latter”

21. On whether the plaintiff/applicant has established a prima facie case with a probability of success, it is not in dispute that from the documents relied on, the plaintiff/applicant is the registered owner of the suit property as evidenced by a copy of the certificate of title dated 30th September, 2020. The plaintiff/applicant therefore succeeds on the first limb of the requirements necessary for grant of injunction.

22. On whether the plaintiff/applicant will suffer injury or damage that cannot be compensated by damages, the plaintiff/applicant averred that the 1st to 10th defendants/respondents have invaded, encroached and subdivided the suit property, and are now threatening to evict the plaintiff/applicant from the suit property. Besides making this claim, there is no document to substantiate the invasion, encroachment and the threat of eviction. The plaintiff/applicant supplied documents as proof of ownership but none to prove actual threat. On this issue, this court is not able to ascertain the kind of threat said to be issued to the plaintiff/applicant. Was it verbal or written? In the absence of the evidence, this court is not able to determine whether the damage to be suffered cannot be compensated by damages.

23. On the issue of balance of convenience, and in the interest of justice, there is need to maintain the prevailing status quo for purposes of hearing the suit. While I find no merit in the notice of motion dated 24th February, 2025, I do grant an order of status quo prevailing at the time, more particularly temporarily restraining any registration or dealing on the certificate of title to the suit property pending the hearing and determination of the suit. Costs in the cause.Orders accordingly.

DATED, SIGNED & DELIVERED VIRTUALLY THIS 12TH DAY OF JUNE, 2025. HON. MBOGO C.G.JUDGE12/06/2025. In the presence of:Mr. Benson Agunga - Court assistantMr. Kiarie for the Plaintiff/ApplicantNo appearance for the 4th, 5th, 6th, 7th, 11th and 12th Respondents