Abdi Aziz Suleiman & Bishar Suleiman v Nyara Youth Group (sued through its management officials chairman, Secretary and treasurer) [2015] KEHC 1199 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ENVIRONMENT AND LAND SUIT NO 24 OF 2015

ABDI AZIZ SULEIMAN …........................................................1ST PLAINTIFF

BISHAR SULEIMAN …...........................................................2ND PLAINTIFF

VERSUS

NYARA YOUTH GROUP (sued through its management

officials chairman, Secretary and treasurer...............................DEFENDANT

R U L I N G

This application is dated 15th April, 2015. The applicant says that the application is brought under Sections 1, 1A, 3, 3A of the Civil Procedure Act, Order 40 Rules 1 and 2 of the Civil Procedure Rules and all the enabling  provisions of the law.  The application prays for orders:-

1.       THAT this application be certified urgent and the same be heard ex- parte in the first instance.

2.   THAT this Honourable Court be pleased to issue an order of  temporary injunction restraining the Defendants, their workers, agents, servants, contractors or anybody else acting at his behest    from entering, remaining on, building, cultivating and/or otherwise howsoever interfering with the plaintiff's quite possession, user and   enjoyment of land parcels No. LIGHT INDUSTRIAL PLOT BLOCK 5/11 ISIOLO until this application is heard and determined.

3. THAT this Honourable Court be pleased to issue an order of temporary injunction retraining the defendants, their workers, agents, servants, contractors or anybody else acting at his behest    from entering , remaining on, building, cultivating  and/or otherwise   howsoever interfering  with the plaintiffs quiet  possession, user and   enjoyment of land Parcels No. LIGHT    INDUSTRIAL PLOT  BLOCK  5/11 ISIOLO until this suit is heard  and determined.

4. THAT the costs of this application be provided for.

The application is supported by the affidavit of ABDI AZIZ SULEIMAN, the 1st plaintiff and has the following grounds:-

THATthe plaintiffs are the registered proprietors of Land No. LIGHT INDUSTRIAL PLOT BLOCK 5/11 ISIOLO.

THATon 12th April, 2015 the  Defendants comprised of a ground of about 30 young men unlawfully entered into the Plot and started putting  up structures thereon and thereafter started destroying the plaintiff's property.

THATdespite various approaches and demand letter by the plaintiffs to the Defendants requiring them to stop the said acts the Defendants have ignored.

THATthe plaintiffs are suffering immense loss and damage as they continue to witness the said destruction of their  developments while they cannot use the said land.

THATthe defendants  have threatened to use violence if the plaintiffs ever steps on the said land.

THATunless this Honourable Court intervenes urgently the Defendants will proceed with the said destruction hence  cause irreparable loss to the plaintiffs.

Vii.  THAT the Defendants will not suffer any prejudice and it is in the interest of justice and fairness that this application beallowed.

Ex parte orders in terms of prayers  1 and 2 were granted on 16th April, 2015.

The plaintiffs have submitted that they demonstrated  a prima faciecase as they are the registered owners of Land Parcel Light Industrial Block 5/11  as is confirmed by both the defunct County Council of Isiolo, the County Government of Isiolo and the National Land Commission.  They submit that the documents tendered by the defendant are forgeries as confirmed  by the 3 bodies.

The plaintiffs have submitted that if the injunctive orders are not granted, they  will suffer irreparable loss as the defendants wanted to put permanent structures on  their land.  They also aver that the defendants had purposefully caused damages to their  property and if Injunctive Orders are not issued, the defendant would continue to cause  further damages, thus occasioning irreparable loss.  The plaintiff's submit that they have achieved the threshold required for grant of Injunctive Orders as enunciated by the case of Giella Versus Cassman Brown & Co. Adv. (1973).

The Defendants  have submitted that they are the registered owners of the Suitland,  and had tendered a bundle of documents as proof of ownership of the disputed plot. They submit that for this reason, the Plaintiff cannot be said to have demonstrated a prima facie case.

The defendants claim that they have been on the suitland  for many year and that they have done a number of developments on the land. They also claim that the plaintiffs  had never occupied the suitland and wanted to use the Court process to access the suitland.

The defendants claim that the plaintiffs stand to suffer  no loss as it is in occupation of the loss.  For this reason they also submit that the balance of convenience tilts in its favour.

I need not reinvent the well. The Court  of Appeal in the case of Mbuthia Versus Jimba Credit Corporation [1988] KLR 1 eruditely gave veritably germane guidance regarding how  a Court should move when considering prayers for interlocutory Injunctive orders. The Court opined as follows:-

“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issue of fact, but rather to weigh up the relevant strength of each side's propositions.  The lower court judge had gone beyond his proper duties and made final findings of fact on disputed affidavits.”

At this interlocutory stage , I will not seek to determine disputed facts.  I, however, note that the defunct  County Council of Isiolo, the County Government of Isiolo and the National Land Commission  have all disowned the documents the defendant tenders  as proof that it owns the disputed plot. I also note that in its Submissions, the defendant has not attempted to controvert the assertion by the County Government  of Isiolo that the documents they have proffered as proof of ownership of the plot are forgeries. The County Government of  Isiolo has also laconically stated that “ there is no  record whatsoever regarding the said Nyara Youth Group in our custody.”

The defunct County Council of Isiolo in a letter dated 20th July, 2012 addressed to the Commissioner of lands unequivocally confirmed that the disputed plot belonged to ABDIAZIZ  SULEIMAN and BISHAR SULEIMAN.

The National Land Commission in a letter dated 22nd May , 2015 and addressed to the County Chief Officer, Land Physical Planning and Urban Development, Isiolo County categorically denied the authenticity of the defendant's documents and laconically termed them “a forgery”. The writer also unequivocally stated  that his signature had been forged.

After carefully weighing up the propositions proffered by the parties, I am inclined to find that the plaintiffs' propositions carry more weight. I therefore, find the plaintiffs' application meritorious.

In the Circumstances,  this application is allowed. Prayer 3 is granted.

I award costs to the plaintiffs

It is so ordered .

Delivered in open Court at Meru this 5th day of November, 2015 in the presence of:-

Cc.  Daniel/Lilian

Parties Not in Court

P. M. NJOROGE

JUDGE