Ali Abdalla Azan v Ali Mohamed & Omar Roshi [2019] KEELC 1752 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CASE NO. 250 OF 2017

ALI ABDALLA AZAN..................................................PLAINTIFF

VERSUS

ALI MOHAMED

OMAR ROSHI......................................................DEFENDANTS

JUDGMENT

BACKGROUND

1.  By a Plaint dated and filed herein on 18th December 2017, Ali Abdalla Azan (the plaintiff) prays for Judgment against the two Defendants for: -

a) An order of permanent injunction;

b) Costs of the suit and interest thereon at Court rates; and

c) Any other relief that this Honourable Court may deem just to grant.

2.  The Plaintiff’s prayers are premised on his assertion that sometime in the year 2014, he cleared some bush and settled on an unregistered parcel of land measuring 40m by 50m situated at Kipini Village within Tana River County and proceeded to develop it by building a permanent residential house thereon, cultivating the land and planting trees and other crops.

3.  It is the plaintiff’s case that after sometime, the 1st Defendant Ali Mohamed started claiming that the land occupied by the Plaintiff which is next to a Catholic Church in Kipini belonged to him.  The 1st Defendant then started using the 2nd Defendant Omar Roshi who is the Area Assistant Chief to harass the Plaintiff and take over the land from him.

4.  Accordingly, the Plaintiff urges this Court to declare that the suit property belongs to him and to issue the orders as listed in the Plaint.

5.  But in his Statement of Defence and Counterclaim dated 6th July 2019 and filed herein on 9th July 2019, the 1st Defendant denies that the Plaintiff cleared the suit property and planted trees or crops thereon.  He further denies that the Plaintiff has used the property openly and exclusively as stated in the Plaint.

6.  The 1st Defendant avers that contrary to the Plaintiff’s claims, the suit property solely belongs to him and is part of his parcel of land which measures 6 ½ acres in total situated at Kipini.

7.  In his Counterclaim the 1st Defendant accuses the Plaintiff of trespass to his property and urges the Court to enter Judgment against the Plaintiff for:-

a) An order of permanent injunction restraining the Plaintiff by himself, servants or agents from trespassing onto the suit property and from constructing, selling, leasing or dealing with the suit property in any manner.

b) Costs of this suit and interest thereon at Court rates.

c) Any other or further relief as the Court may deem just to grant.

8.  The 2nd Defendant has also filed a Statement of Defence in person dated and filed herein on 13th September 2018.  He denies that he used his office as Assistant Chief Kipini Sub-Location to assist or instigate the 1st Defendant to raise a claim against the Plaintiff.  It is his case that he only arbitrated over the dispute in the course of his work as the suit property falls within his area of jurisdiction.

THE PLAINTIFF’S CASE

9. At the trial herein the Plaintiff testified as his sole witness.  He told the Court that the 1st Defendant is his father-in-law and that the 1st Defendant not only chased him away from the land but also destroyed his house.

10. The Plaintiff testified that all those who stay in the land in Kipini are squatters and the Defendants had no right to chase him away from the land.  He told the Court that he had no issue with the 2nd Defendant as it is only the 1st Defendant who started claiming that he (the Plaintiff) had bribed the 2nd Defendant.

11. Under cross-examination by the 1st Defendant in person, the Plaintiff told the Court that his house was destroyed in March 2017 but when he went to report to the Police, they took no action. The Plaintiff denied that he entered the land courtesy of his marriage to the 1st Defendant’s daughter.

THE DEFENCE CASE

12.  The two Defendants also testified as sole witnesses in their respective cases.

13.  The 1st Defendant maintained that the land in dispute belonged to him and that the documents to demonstrate ownership were with the Area Chief, having left them there when they went for arbitration over the dispute.  He told the Court that he had owned the land from the colonial times.

14.  On his part, the 2nd Defendant testified that he is the Area Chief Kipini and that both the Plaintiff and the 1st Defendant are from his area of jurisdiction.  He further told the Court that he has dealt with the case before and that it was the 1st Defendant who has been on the land for more than 20 years.

15.  Under cross-examination by the Plaintiff in person, the 2nd Defendant told the Court that the Plaintiff had lived on the land for about 3 years with his wife who is a daughter to the 1st Defendant.

Analysis and Determination

16. I have considered the Plaintiff’s case and the response thereto by the two Defendants.  I have equally considered the testimonies of the respective parties all of whom appeared unrepresented by counsel before me.

17. As it were both the Plaintiff and the 1st Defendant in his Counterclaim seek the grant of orders of injunction against each other in regard to the disputed property which is only described as a parcel of land measuring 40m x 50m situated within Kipini Village in Tana River County.

18. Generally, an injunction is sought in addition to other remedies.  It is not usual for parties as has happened in this case to seek an injunctive relief as a stand alone remedy.  The reasons for this I think lie in the basis for the Plaintiff’s claim and that of the Counterclaim.

19.  According to the Plaintiff, sometime in 2014, he found some bushland near Kipini Catholic Church in Kipini Village Tana River County.  He then proceeded to clear a portion measuring 40m x 50m whereupon he proceeded to build his house.  He then started residing on the land and cultivating parts thereof.  However, in March 2017, the 1st Defendant with the help of the 2nd Defendant proceeded without any lawful reason to demolish his house and tried to chase him away from the land.

20.  The 1st Defendant who happens to be the Plaintiff’s father-in-law denies that they demolished the Plaintiffs’ house.  It is his case that the Plaintiff trespassed onto his parcel of land and tried to settle thereon.

21.  As it were the basis for the Plaintiff’s case is that both himself and his father-in-law are squatters on the suit property and that his father-in-law has no right to chase him away from the land.  On the other hand, his father-in-law avers that the portion of land which the Plaintiff cleared is part of his 6 ½ acre parcel of land in Kipini.

22.   Like the Plaintiff, the 1st Defendant also did not have any documents to demonstrate his entitlement to the land.  His case was however supported by the 2nd Defendant, the Assistant Chief Kipini Sub-Location who testified that he has previously dealt with the dispute and asserted that the 1st Defendant had owned the land in dispute for more than 20 years.

23.  In the circumstances before me, I was not satisfied that the Plaintiff had established his right to the piece of land in dispute and/or that there was any actual or threatened infringement of any such right by the Defendants.

24.  Even though he claimed that he had no dispute with the 2nd Defendant, he sued him and dragged him to Court.  From the material placed before me, it is evident that the 2nd Defendant had absolutely no interest in the property save for the fact that he performed his functions as the Area Assistant Chief.

25.  Accordingly, I did not find merit in the Plaintiff’s case and the same is hereby dismissed.  I did not also find any basis for granting the 1st Defendant’s Counter-claim in the manner in which it is framed and the same is struck out with no order as to costs.

26.  The Plaintiff shall however pay the Defendants the costs of his suit.

Dated, signed and delivered at Malindi this 20th day of  September, 2019.

J.O. OLOLA

JUDGE