Andrew Mwiti Mpungu v Haron Kimiyu [2021] KEELC 1556 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC.  CASE NO. 378 OF 2019

ANDREW MWITI MPUNGU........PLAINTIFF

- VERSUS -

HARON KIMIYU.......................DEFENDANT

RULING

1. This ruling relates to the application dated 25. 11. 2019 where Plaintiff/Applicant is seeking injunctive orders against the Defendant.  The Defendant on the other hand has filed a preliminary objection dated 17. 2.2021 seeking the dismissal of the application.

Notice of Preliminary Objection

2. The Defendant is seeking for dismissal of the application on the basis that the court lacks jurisdiction to determine the case as the same should be handled by the Magistrates Court in line with the provisions of Article 169(1)(a) and (2)of the Constitution of Kenya, Section 26 (3) and 4 of the Environment and Land Act, 2011andSection 7 (1) of the Magistrates Court Act.

3. In response thereof, the Plaintiff contends that the firm of Messrs Masaka & Company Advocates are strangers in the suit as they are not on record in line with the provisions of Order 9 rules 7of the Civil Procedure Rules.They also contend that a valuation report pegs the value of the suit property at Kshs 25,000,000.

The Notice of Motion dated 23. 11. 2019

4. The Plaintiff/Applicant seeks orders that “

“The court be pleased to grant an injunction restraining the Respondent whether by himself, his agents and/or his servants from trespassing on, wasting, constructing on, alienation or otherwise interfering or dealing with the Plaintiff’s property being Land Parcel Number LR. No. 209/10940 pending hearing and determination of this suit.”

5. In responses thereof, the Defendant avers that he is the beneficial owner of the suit land whereby he constructed the School in the year 2005 and was issued with a relevant certificate of registration.  He contends that before the year 2019,  the Plaintiff has never interfered with the School.

6. I have considered the arguments advanced by the rival parties. I note that there is a notice of appointment by  the defence advocates dated 30. 6.2020 filed in the Court Tracting System (CTS).  If the same was not served upon the Plaintiff Advocates,  then the defence should endavour to serve the same forthwith.

7. On the question of jurisdiction, the defence has quoted the law at length on the preposition that the matter ought to have been filed before the Magistrate’s Court.  However, he has not provided the basis of his claim.  He has not filed any pleadings to counter the claim of the Plaintiff, nor has he availed any valuation report to support his claim. As such, the Notice of Preliminary Objection is found to be unmerited.

8. As regards the prayers for injunctive orders, I find that the same are not in tandem with the prayers in the plaint.  It is quite apparent that Defendant is on the suit land where he operates as school.  In prayer (c) of the Plaint, the Plaintiff is seeking:

“ an order of eviction against the Defendant and the said School Twinster Primary School & Secondary from the said premises”

9. It follows that granting of injunctive orders would amount to issuance of a major relief before the hearing of the case – see Daniel Atibu Jogimba v Ainea Sandanyi Mogara [2013] eKLR

10. In the circumstances, I decline to grant any orders of injunction at this stage.

11. In the final analysis, both the Notice of Preliminary Objection dated 17. 2.2021 and the Application dated 25. 11. 2019 are dismissed with each party bearing their own costs.  The parties are to take steps to have the matter prosecuted speedily.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER, 20212021THROUGH MICROSOFT TEAMS.

LUCY N. MBUGUA

JUDGE

In the presence of:-

Mr. Odinya  for the Plaintiff/Applicant

Ms Odango holding brief for D. Omari  for the Defendant

Court Assistant:  Eddel

HON. LUCY N. MBUGUA

ELC JUDGE