David King’oo Ngongu v Peter Ndingu Musembi, David Mutuna, Kioko Mutisya Muendo & Kyalo Kilonzo [2014] KEHC 679 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

MILIMANI LAW COURTS

ENVIRONMENTAL & LAND DIVISION

ELC NO. 792 OF 2014

DAVID KING’OO NGONGU...............................................PLAINTIFF/APPLICANT

-VERSUS-

PETER NDINGU MUSEMBI...............................1ST DEFENDANT/RESPONDENT

DAVID MUTUNA................................................2ND DEFENDANT/RESPONDENT

KIOKO MUTISYA MUENDO.............................3RD DEFENDANT/RESPONDENT

KYALO KILONZO..............................................4TH DEFENDANT/RESPONDENT

RULING

Before me is an amended Notice of Motion dated 6th October, 2014 and which motion seeks an order of eviction of the Respondents from all that property known as title No. Mavoko Town/Block 3/2320. The said Notice of motion also seeks orders to compel the Respondents to hand over vacant possession of the suit property to the Plaintiff and a further order to restrain the Respondents from scooping sand, cultivating crops, grazing livestock burning charcoal on the suit property and or alienating the suit property. It is to be noted that the amended plaint filed by the Plaintiff on 5th October, 2014 seeks basically the same orders. The Plaint also seeks a declaratory order to the effect that the Plaintiff is the proprietor of the suit property.

The motion is pegged on the grounds stated on the face thereof as well as on the supporting affidavit of the Applicant. The motion though served by way of substituted service did not receive any reaction from the Defendants. The Applicant on the other hand filed written submissions on the motion on 4th November, 2014. The Applicant’s counsel relied on the supporting affidavit and the written submissions in urging the motion before the court on 5th November, 2014.

Briefly, the Applicant contends that he is the proprietor of the suit property. He has annexed to the supporting affidavit a copy of the title deed. The title deed reveals the Applicant as proprietor. The suit property measures approximately 1 acres and the Applicant states that the Respondents who have no proprietary interest at all have intruded and occupied the same. The intrusion it would appear took place in 2007. The Applicant says that attempts to have the Respondents vacate the suit property have been futile. This includes an agreement between the Applicant and the Respondents together with other persons. The said agreement was finalized in December, 2011 and was to be consummated in December, 2012. The Respondents are said to have acted through their representatives in the agreement. The Applicant further states that the Respondents continued occupation of the suit property continues cause irreparable harm to the Applicant.

In the Applicant’s written submissions filed on 4th November, 2014, the Applicant majorly reiterated the contents of the Supporting affidavit. The Applicant’s Counsel further submitted that the Applicants had met the standards set out in the case of Giella –v- Cassman Brown & Co. Ltd [1973] EA 358 of the grant of an interlocutory injunction. To the Applicant, he has established a prima facie case with a probability of success and further he has shown that he would suffer irreparably if an injunction was not granted.

No doubt the principles laid out in the Giella –v- Cassman Brown & Co. Ltd case (supra) still hold as good guidance when a court is faced with an application for interlocutory prohibitory injunction. No doubt too that an injunction is an equitable remedy. It is also a discretionary relief. In exercising the jurisdiction therefore and answering the question whether or not to grant an interlocutory injunction the court, in my view, must not only ensure that the principles enunciated in the case of Giella –v- Cassman Brown are met but must also take into account all the relevant principles of equity as well as the factors of the case (application) before it. In short, it is not discretion to be exercised in a summary manner even in the absence of the Respondents.

I have read through the pleadings especially the amended plaint as well as the amended notice of motion and the supporting affidavit. I have also carefully perused the submissions by the Applicant. The orders sought by the Applicant, it is important to point out are mandatory in nature. The Applicant in seeking eviction orders and delivery up of vacant possession is seeking a positive injunction. By virtue of the provisions of Section 63(c) of the Civil Procedure Act this court has powers to grant mandatory injunctions at an interlocutory stage. The standards and principles for the grant of an interlocutory positive (mandatory) injunction are however slightly different from those of an interlocutory negative (prohibitory) injunction. As was held in the case of Kenya Breweries Ltd –vs- Washington Okeyo [2002] 1EA 109, there must be special circumstances over and above the establishment of a prima facie case for a mandatory injunction to issue and even then only in clear cases where the court thinks that the matter ought to be decided at once.

The orders now sought in the amended notice of motion are effectively the same as the prayers sought in the amended plaint save for the declaratory prayer. In effect, the question in this motion is whether the Applicants have met the threshold for the grant of the mandatory injunction of eviction and delivery up of vacant possession that he seeks.

There is no doubt that the Applicant has established a prima facie case. The Applicants, from the uncontroverted affidavit evidence is the registered proprietors of the suit property. He has availed evidence of title and thus of proprietory interest as held by himself through the copy of the title deed. The Land Registry records through the copy of the certificate of official search also reveal that he is the true owners. He is consequently entitled to possession: SeeMoya Drift Farm Ltd –v- Theuri [1973]E.A. 114.

The Applicant has also submitted that the Respondents through self or servants have intruded into the suit property. The Respondents, by the Applicants own admission, have however been on the premises since the year 2007. That is certainly a while back. The Applicant states that negotiations to have the Respondents vacate the premises have been futile. It is not clear why the same have been futile or even if indeed there were such negotiations. The negotiations were crystallized into a formal exit agreement. A copy of that Agreement and Memorandum of understanding have been annexed to the supporting affidavit. None of the Respondents however was a party to the said memorandum of understanding. I would not in the circumstances and at this stage bind them to the memorandum of understanding to vacate the suit property.

I also take note of the fact that the Respondents have been in the suit premises since the year 2007. The circumstances of their entering the property are unclear.

The Applicant is however the registered proprietor and under Sections 24 and 25 of the Land Registration Act is not only entitled to possession but also the protection of the court. I see absolutely no reason why the Respondents can continue to deny the Applicant access to and possession of the suit property.

I am convinced that this case falls within the threshold of a mandatory injunction. I am satisfied that I would grant automatically the orders sought against the Respondents without hesitation if a trial was held today.  I would grant a mandatory injunction.

The amended Application dated 6th October, 2014 is allowed specifically against the four Respondents in the terms of prayers number 3 and 3(a). The Respondents are to hand over vacant possession within 30 days of service of the court order herein. In default the Applicant shall be at liberty to apply for eviction orders. The Applicant will also have costs of the application.

Dated, signed and delivered at Nairobi this 28th day of November, 2014.

J. L. ONGUTO

JUDGE

In the presence of:-

....................................................... for the Applicant

....................................................... for the Respondents