Agendi Investments Limited v Naftali Maina Kihara & Land Registrar, Nyandarua [2014] KEHC 52 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

ELC CASE NO. 391 OF 2013

AGENDI INVESTMENTS LIMITED......................................PLAINTIFF

VERSUS

NAFTALI MAINA KIHARA.........................................1ST DEFENDANT

LAND REGISTRAR, NYANDARUA..........................2ND DEFENDANT

RULING

1. The plaintiff filed  a Notice  of Motion  dated 28th May, 2013under Order 40 Rule 1, 2and 3 and Order 51 Rule 1 of the  Civil Procedure Rules, 2010 and Sections  3 and 3A of  the   Civil Procedure  Act   and all  enabling   provisions of the  law  seeking the  following substantive orders;

(i)  That the 1st defendantbe  permanently restrained  from trespassing, entering, interfering,fencing off, blocking or in any manner interfering with the plaintiff's members' peaceful and  quiet possession of Nyandarua/ Mutonyora /86  (Subdivisions Nyandarua /Mutonyora /3486-3503)("hereafter  referred  to  as the   suit property") pending the hearing and determination of this suit.

(ii) That the   2nd defendant be directed to place a restriction on  the Title Deed of the suit property.

2.   The application  is   premised  on   the grounds  set  out therein and  is supported  by  an affidavit sworn  by  John Kimani Ng'ang'a, a  director  of  the plaintiff.  He  depones that  the  plaintiff is a  land  buying  company  formed  to resettle its members who  were victims of the  tribal clashes; that  they  had  bought  the  suit  property from one  Mary Nduta Rukwaro in  1996 but in 1998 a fire  razed down the offices of the plaintiff which destroyed most of their records as evidenced by  the police   abstract (JKN-5);   that the 1st defendant had fraudulently transferred the  suit property to himself and now  intended to sell  it off to unsuspecting third parties. He   urged  the   court  to   grant  them  the  prayers sought as they had established a prima  facie case and their members  would  suffer irreparable  harm  as they  had nowhere else to go  and had put up developments on the suit property.

3.   The application was opposed by   the 1st defendant through a replying affidavit dated 11th December, 2013.  He deponed that he was the rightful owner of the suit property having been allocated the   same by the   Settlement Funds Trustee (SFT).  He avers that whereas it is true that the  land was originally allocated to  the  said Mary Nduta Rukwaro, she  failed  to   repay  the   loan  to   SFT  and  the  land  was reallocated to him. He paid the necessary consideration and requisite fees after which SFTexecuted a discharge and transfer and he consequently obtained title (NMK 3-5). He further deponed that he  had subdivided the suit  property into 18  parcels of which only 4 people were in  occupation that had  attached  photographs  showing  scattered development on  the  suit property (NMK  8)  and denied that victims of tribal clashes lived  there.  Finally he  deponed that this was a ploy  to  attract sympathy from   the court as the plaintiff had  not established  any connection with the   suit property; that  they had not  established a prima  facie  case nor  had they established how  they  would suffer irreparable harm. He urged the court to dismiss the   application with costs.

4.  The   matter proceeded to inter parte’s hearing on 19th May, 2014 with Mr  Kabita appearing for  the   plaintiff and Mr Mutonyi appearing for the 1st  defendant. The office of the Hon Attorney General merely entered appearance  for  the  2nd defendant on  13th  August, 2013 but did  not  respond to the application nor  participate in  the  hearing of the  application.

5.  Mr Kabita reiterated the facts as presented in the application and its supporting affidavit.

6. Mr Mutonyi also   reiterated the facts as presented in the 1st defendant’s replying affidavit. In  addition he  submitted that the   plaintiffs had attached  no  evidence demonstrating how  the   original transaction  occurred between themselves and the  said Mary Nduta Rukwaro, nor  had they attached any  evidence of how  they had subdivided the  suit property amongst its members, or  even  a list  of the names of their members. On his part the 1st defendant had exhibited receipts as proof of purchase, discharge of the charge over the property and a title deed. He further submitted that the status of  the   members  being victims of  the  tribal clashes was  a move  to  seek sympathy of the  court as they had not been enjoined as parties in  the  suit.

7.  In response, Mr Kabita submitted that the plaintiffs were in occupation of the suit land, not the 1st defendant as alleged by counsel for the 1st defendant.

8. From the  facts presented to  this court through affidavit evidence, the  question that comes to the  fore  is this, should this  court  grant  the order  of interlocutory  mandatory injunction sought?

9. A   mandatory injunction, at the interlocutory stage, is normally granted in the clearest of cases and where there are special circumstances. See Halsbury’s Laws of England Vol.  24 (4th edition) para.  848. This was also the  holding in  the  case of Locabail International Finance Ltd  vs Agroexport and others ( 1986) All ER pg.  901 wherein the court stated;

"A mandatory injunction ought not to be  granted on an  interlocutory application in  the absence of  special circumstances, and   then  only  in   clear cases  either where the court thought that the matter ought to be decided at  once or  where the injunction was directed at  a  simple and summary act   which could be  easily remedied  or  where the  defendant has  attempted  to steal  a   march  on  the plaintiff.  Moreover,  before granting  a   mandatory injunction, the  court  had to feel   a  high  degree  of  assurance that  at  the trial it would appear  that  the  injunction  had  rightly  been granted, that  being a  different and higher standard that was  required for  a  prohibition injunction".

See also the cases of The Despiria Pontikos (1975) 1E.A. - 38; Mucuha -vs. - Ripples Ltd (1990-1994} 1 EA 338and Kenya Breweries Limited -vs. - Okeyo) 2002} 1EA 109 CAK.

These decisions and others have reiterated that an interlocutory mandatory injunction shall only be granted in very special cases and in very clear circumstances.

10.  The  Courts have also held   that  granting a mandatory order  or   injunction  may   have  the   effect   of  bringing the litigation  to  an  end at  the   interlocutory stage. This was echoed by the Court of Appeal in the case of Trinity Prime Investment Ltd vs Savings & Loan and another Civil Appeal No. 90  of 1998that"where  the  Court  has granted  an  interlocutory injunction  prayed for,  it should not grant a  mandatory injunction  whose effect shall bring the litigation to an end."

11. Do the circumstances of this case satisfy the criteria repeatedly reiterated by the above cases and others? In my view, the   application herein is not   a clear case to warrant the Court to grant an interlocutory mandatory injunction. A  mandatory  injunction  against  the   1st defendant  seeking to  permanently restrain  him   from trespassing,  entering, interfering, fencing off,  blocking or  in any manner interfering  with the plaintiff's members' peaceful  and  quiet  possession  of  the  suit   property  will amount to  extinguishing his   rights of  ownership over the suit property at an interlocutory stage. As to whether the 1st defendant had the suit property fraudulently transferred to him   by   the   2nd defendant, is   an   issue to   be   canvassed during the main hearing.

12.   From the affidavit evidence, it is not   clear who   is in occupation. The plaintiffs allege that their members are in occupation but this is disputed by the 1st defendant who has exhibited some photographs (NMK8) showing scattered developments. A permanent injunction therefore restraining the 1st defendant from entering the  suit property would amount to an eviction if he is in occupation from the suit property and consequently  ending   the suit at   an interlocutory stage. The issue before this court is not direct and simple and there are no special circumstances adduced by the applicant to warrant a mandatory injunction. Even if some people are in  occupation of the suit property the plaintiff has not adduced any evidence showing that these are its members.

13. To this end, the applicant has failed to meet the threshold for grant of theinterlocutory relief. In the  result, I decline to  grant the  orders sought in the Notice  of Motion dated 28th May,  2013 and dismiss the  motion with costs to the  1st  defendant.

Dated, signed and delivered at Nakuru this 19th day of September 2014.

L N WAITHAKA

JUDGE.

PRESENT

Mr Kabita holding brief for Mr. Gathui for the plaintiff

N I A for the 1st defendant

N I A for the 2nd defendant

Emmanuel Maelo:  Court Assistant

L N WAITHAKA

JUDGE