Eliud Wekesa Situma v John Nyongesa, Silas Nyongesa & Wycliff W. Nyongesa [2013] KEHC 5896 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENTAL AND LAND CASE NO. 31 OF 2012

ELIUD WEKESA SITUMA..………….. PLAINTIFF/APPLICANT

VERSUS

JOHN NYONGESA

SILAS NYONGESA

WYCLIFF W. NYONGESA..………….. DEFENDANTS/RESPONDENTS

RULING

By an application dated 27th July 2012, the applicant has moved the court seeking orders;

THAT the applicant is the registered owner  of the suit parcels of land.

THATas a registered proprietor he is  entitled to enjoyment of full proprietor y  rights.

THATthe respondents without any legal justification have continuously interfered with those rights.

The respondents  are selling part of the suit land to third parties.

THATit will best serve the interest  of this suit if the orders prayed are granted.

Prayer  1 & 2  of the application  is dispensed  with as there  were no interim orders granted. The application was argued inter partes by way of written submission.  This ruling is therefore in respect to prayer  3,4 & 5 of the application.

The application is  premised on grounds  on the face of it and on the supporting affidavit of the applicant.  In the application the applicant says he is the registered owner of the suit parcels. He has annexed copies  of title deeds to support this averment. He also says that as the registered owner, he is entitled to enjoy the proprietary rights.

In paragraph 3 of the supporting affidavit, he says the defendants/respondents took advantage  of his  absence and invaded the land and  are doing wanton destruction of the properties in the land and have  embarked  on a fraudulent selling process.

Mr. Wanyama  for the applicant  filed written submission, he  states  that the defendants'  interferences of the suit land  is a bar/hindrance  for the plaintiff to develop it hence occasioning his substantial loss. He as  quoted the case of Michael G. Kimotho   Vs. Nicholas M. Mugo Civ.  Appeal No. 53 of 1995  in the court of  appeal in Nairobi to  fortify their submissions.

The application is opposed.  The respondents have  filed  replying affidavit through John Nyongesa Nasokho, the 1st respondent sworn on 9th January 2013. He avers the application has been made without making full disclosure. In paragraph 5, he states  that he has on the land several houses and  trees and granting  the injunction amounts  to constructive  eviction. The respondent  contends  the  titles were  fraudulently detained. Finally they contend since the applicant is not in  occupation, he will suffer no loss.

The respondent  filed their written submissions through Bulimo & Co. adv. And their advocate on record Mr. Situma from the said firm has submitted  on all the principles  of  granting injunctions. He submits the applicant has not proved  a prima facie case  since according  to him, the titles were fraudulently obtained.

He also submitted the applicant will suffer no loss as he  had not been in occupation of this land. Inany event it is the respondents who  will suffer as they have done extensive development on the land and therefore  balance of convenience  tilts in favour of the respondents. He  relied in case law of Farmers Partner Ltd & 2 others Vs. Barclays Bank  of Kenya Ltd. [2009] e KLR and Giella Vs. Cassman Brown & Co. Ltd. [1973] E.A p. 358.

The applicant is asking this court to grant an injunction to restrain the  defendants from  “selling, tilling, ploughing, utilizing or in any manner making use of” my interpretation  of  “in any manner making  use  of the suit parcels” which in my view would include  the respondents  not staying on this land.  He has admitted that the respondents are in the land both in the supporting affidavit and the plaint. He has not disclosed  when they invaded the  land.Also in prayer (a) of the plaint he has sought eviction orders.

The respondents being in occupation means that  this is not the  nature or   circumstances under which order 40 ought to apply.  Order 40 rule(a) anticipates a situation where any property in  dispute is in danger of being  wasted, damaged or alienated or rule 1(b)the defendant threatens to dispose or  remove the property  hence obstruction or delayed  in  execution of a decree. The applicant has not explained to this court the nature of damage that the respondents are causing to the suit properties. Neither has  he  shown that  the defendants are intent on disposing of the land. He has merely alleged this . In any event the title deeds are in  his  names so the sale will not be completed unless he surrenders his title deeds.

In the case of Michael G.  Kimotho Vs. Nicholas M. Mugo cited by the applicant, it  was a judgment given by the court after hearing a party. It was   judgment not ruling on an application.  Neither was it  in regard to issues of njunction. It has no  relevance in the present circumstances. Probably applicable at the conclusion of this case in support of their submissions.

The other case  cited by the  Respondents, Farmers Partner Ltd & 2 others   Vs. Barclay's Bank of Kenya  Ltd, is applicable to a certain extent in terms of quoting Giella Vs. Cassman Brown.

However in terms of establishing a prima facie case,an expert report ( as in the farmers case) cannot be  compared  with value attached to holding a title deed.

In the instant  case, although  the applicant may have a prima facie case, the balance of convenience is much stronger in tilting in favour of the    respondents as they await the outcome of the case.  Since the applicant did not disclose when the respondents invaded  his land, it would be safer for the court to maintain the status quo till the suit  is  heard and determined.  In the circumstances, I decline the application for injunction with costs to the Respondents.

RULING DATED, SIGNED, READ AND DELIVERED in open court this 17th  day of June  2013.

OMOLLO

JUDGE.