Francis Muchiri Itiri v M’maranya M’Rimbere, Attorney General, Registrar of Lands Meru,Dlaso (District Lands Adjudication Officer Tigania West Sub-County & Director of Surveyors [2021] KEELC 1219 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC PETITION NO. E010 OF 2021

IN THE MATTER OF ARTICLES 22 (1, 4), 23 AND ARTICLE 40 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED VIOLATION OR INFRINGMENT OF THE RIGHTS GUARANTEED UNDER ARTICLE 40 OF THE CONSTITUTION

FRANCIS MUCHIRI ITIRI ......................... PETITIONER

VERSUS

M’MARANYA M’RIMBERE ..............1ST RESPONDENT

HON. ATTORNEY GENERAL...........2ND RESPONDENT

REGISTRAR OF LANDS MERU ......3RD RESPONDENT

DLASO (DISTRICT LANDS ADJUDICATION OFFICER

TIGANIA WEST SUB-COUNTY ....... 4TH RESPONDENT

DIRECTOR OF SURVEYORS .......... 5TH RESPONDENT

RULING

1. The application dated 1. 3.2021 seeks interim orders of injunction barring and restraining 1st respondent from trespassing into, encroaching, selling, transferring, excavating, building or erecting structures therein pending hearing and determination of the petition.

2. The application is supported by an affidavit sworn on 1st March 2021.

3. The grounds are that the late M’Itiri M’Ekandi was the registered owner of Parcel No. L.R Akithi/111/353 which was fraudulently sub-divided and the original map allegedly changed through collusion and fraud.  The applicant also claims the 1st respondent has trespassed into the subject land hence there is threatened breach of peace.

4. The 1st respondent through a replying affidavit sworn on 7th April 2021 opposes the application and states he is the registered owner of Parcel No. Akithi/111/734 adjacent to Parcel No. Akithi/111/353 belonging to the deceased now sub-divided into L.R No’s 4141, 4136, 4138, 4139 and 353 in favour of the petitioner and his brothers.  He claims the petitioners are occupying the aforesaid subdivisions and are the ones intruding into his land Parcel No. Akithi/111/734.

5. Further the 1st  respondent claims that  the petitioner is the one who maliciously damaged his fence leading to the criminal case at Tigania Law Courts, which they resolved amicably.

6. He therefore denies any collusion as alleged and maintains his title deed was issued in 2017  hence this petition and application is an afterthought.

7. In the petition dated 1st March 2021 the applicant alleges his fundamental rights and freedoms have been violated by the respondents on account of threats, forgery of land documents, collusion to disentitle him of his late father, property and by fraudulent transactions over L.R No. Akithi/111/353.

8. The petitioner seeks the aforesaid acts by the respondents be declared illegal, there be cancellation of the altered title deed for Parcel No. Akithi/111/353, a permanent injunction restraining the 1st respondent from interfering with the aforesaid parcel, certiorari to quash the decision to alter the register, mandamus to cancel the altered map and prohibition against the respondents from  interfering with the aforesaid suit land.

9. The respondents are yet to respond to the petition.

10. Be that as it may, for the petitioner to be entitled to temporary injunctive orders, he must establish a prima facie case with a probability of success; he must also show he will suffer irreparable loss and damage which may not be compensated by way of damages and lastly that the balance of convenience tilts in favour of granting the injunction.

11. The applicant has not attached any title deed or search to indicate he owns   Parcel No. Akithi/111/353, in accordance with Section 26 of the Land Registration Act.  Article 40 of the Constitution grants a registered owner legal rights which are protectable by law.  He who comes to equity must come with clean hands and make full disclosure.  Title deeds were issued in 2017 yet the applicant  filed the petition in 2021. The delay in not challenging the process for the last four years has not been explained.

12. Further the 1st respondent has produced a copy of a title deed and claims that Parcel No. Akithi/111/353 has been sub-divided into other parcel numbers in favour of the petitioner/applicant and his brothers. The petitioner has attached a limited grant. His father passed on in 2017, at the same time title deeds were issued.

13. There are internal dispute mechanisms set out under the Land Adjudication Act.  The applicant has not disclosed if he took advantage of those procedures other than making a complaint with the Office of the Ombudsman.  In absence of any document to show he holds legal rights over the suit land no prima facie case has been established with a probability of success.

14. In the circumstances, this application does not meet the threshold for granting temporary injunction.  Even if the court was to look at the overriding objective as set out under Sections 1A, AB and 3 and 3A of the Civil Procedure Act, the same militates against granting interim orders at this stage.

The application is dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 3RD DAY OF NOVEMBER, 2021

In presence of:

Miss Gitonga holding brief for Maranya for 1st respondent

Kieti for 2nd and 3rd respondents

Aketch for petitioner – absent

Court Assistant - Kananu

HON. C.K. NZILI

ELC JUDGE