Geofrey Kimaru Korir, George Wendot, Daniel Kandagor Bowen, Philip Kiptarus Kangor, Gabriel Kangor, Jane Chirchir, Chepkeitany Tiwina, Julius Chepketany Chebor, Emmanuel Sang, Kipserem Jackson Cheburet, Julius C Chemjor, & Joseph Kibor Chemjor v William Ngete Wanyama,Francis Fumbe, Thomas Nabetet, John Ekelonyo & Muli [2014] KEHC 4803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

E.L.C NO. 269 OF 2012

GEOFREY KIMARU  KORIR..........................................1ST PLAINTIFF

GEORGE  WENDOT…….…........................................2ND PLAINTIFF

DANIEL  KANDAGOR  BOWEN…..........………..….3RD  PLAINTIFF

PHILIP KIPTARUS  KANGOR….....…......…………..4TH  PLAINTIFF

GABRIEL  KANGOR………...…....……….……….…5TH  PLAINTIFF

JANE  CHIRCHIR……………...….....…….….………6TH  PLAINTIFF

CHEPKEITANY TIWINA………....…...…...…..………7TH  PLAINTIFF

JULIUS  CHEPKETANY CHEBOR….......…...……….8TH  PLAINTIFF

EMMANUEL  SANG……….……...…..…..…………..9TH  PLAINTIFF

KIPSEREM JACKSON  CHEBURET…..........……..10TH  PLAINTIFF

JULIUS   C  CHEMJOR……….……........…….…….11TH  PLAINTIFF

JOSEPH  KIBOR  CHEMJOR…….........….……….12TH  PLAINTIFF

VERSUS

WILLIAM  NGETE  WANYAMA….........……………1ST  DEFENDANT

FRANCIS  FUMBE…….……………...….…………2ND DEFENDANT

THOMAS  NABETET….………....…….....…………3RD  DEFENDANT

JOHN  EKELONYO………....……...…………..…….4TH DEFENDANT

MR . MULI……………...…………..…………………5TH DEFENDANT

RULING

1.   The Notice of Motion dated 12th March, 2012 has been brought under Order 40 Rule 1, 2 ,Order 51 Rule 1of the Civil Procedure Rules and Section 3 Aof the Civil Procedure Act. The Applicants are seeking, inter alia,the following orders;

That pending the hearing and determination of this suit this honourable court be pleased to  issue an injunction restraining the  defendants/respondents  their agents, servant and or any person acting under them from interfering with land parcels  Nakuru/Ngongongeri/1817,1819,1820,1821,1822,1823,1824,1825,1826,1828,1829 & 1831 (here after referred to as the suit properties) in any manner whatsoever.

(ii)      That costs of this application be borne   by the defendants.

2.   The application is supported by the affidavit of Joseph Kibor Chemjor,and is based on  the grounds stated on the face thereof.

3.   He depones that in 2005, the 12 applicants herein together with three other individuals jointly purchased parcel No.Nakuru/Ngongongeri/ 1676 from Sammy K. Mwaita measuring 23. 5 Hectares. They subdivided the said parcel among themselves and obtained title deeds. Despite being registered as the lawful owners, the defendants without any legal claim are now in the process of clearing and burning the said parcels ready for planting which is an infringement of the plaintiffs proprietary rights.

4.   The application is opposed. Francis Fumbe the 2ndrespondent herein, filed a replying affidavit on 2nd April, 2012. He deposes that the respondents and several other persons have been in occupation of the suit properties for a period of over 20 years as squatters but denied that any of the respondents were cultivating therein. This was initially forest land which the former President Daniel ArapMoi upon the respondents request, directed the then Commissioner of Lands Sammy Mwaita, to put the respondents in lawful possession of the land they were occupying. Sammy Mwaita did not heed the former president's directive but instead allocated himself and John LokorioNakuru/Ngongongeri/1, the subject of a related suit in, Nakuru High Court Civil Case No. 19 of 2006pending before the court of appeal. Mr Mwaita later excised Nakuru/Ngongongeri/ 1676 which he sold to the plaintiffs herein.

5.   When the application came up for hearing on 22nd January, 2014 Mr Kabita holding brief for Mr Akango applied that the application to be disposed of by way of written submissions. His application was denied and directed that the application proceeds at 12. 45P.M by way of oral submissions. Only Mr. Murimi , learned counsel for the plaintiff was present during the hearing.

6. Mr. Murimienunciated the averments contained in the supporting affidavit of the applicants. In addition he exhibited photographs showing land that had been freshly cultivated by the respondents. He further submitted that Nakuru High Court Civil Case No. 19 of 2006 addressed issues relating to Nakuru/Ngongongeri/1 which land was different from the current suit parcels as established by the Nakuru District Land surveyor.

7.   He drew the attention of the court to a report by the Nakuru District Land surveyor dated 26th March, 2013 who had visited the suit parcels to mark and demarcate the boundaries between parcel No.  Nakuru/Ngongongeri/ 1 and Nakuru/Ngongongeri/ 1817-1831 as ordered by the court on 26th March, 2012. In his report he stated that the two parcels were different.

8.  He relied on the case of Kenya Commercial Finance v Afraha Education Society CA 142 of1999which l have read and considered.

9.  Before considering the prayer for injunction, it is important  to first consider whether this suit and application are res  sub  judiceNakuru High Court Civil Case No. 19 of 2006 pending before the court of appeal. This contention if  proved will render  it  unnecessary at this juncture, to proceed with the suit or  application.it  behooves  this  court to  consider it first.

See  Channan  Agricultural  Contractors  V.  mumias  Agricultural  Transport   limited  Civil   Appeal  No. 81  of  1991  where the court  of Appeal held:-

“Section  6   of  the  Civil  procedure  Act does not  empower a judge to strike  out  but  only allows  for  stay”

10.   The respondents  contention  that the  issues raised in the current  suit  and  application  are similar  to those  in  Nakuru High Court Civil Case No. 19 of 2006  is vehemently  opposed by the  applicants who argue that the  issues raised in  Nakuru High Court Civil Case No. 19 of 2006 and the parties thereto are different   from those in the  instant  suit  and application. The  applicants therefore maintain that the suit  herein in not res sub  judiceNakuru High Court Civil Case No. 19 of 2006.

11.   Section  6  of the  Civil procedure  Act,  under  which the above  contention is  premised  provides:-

“No   court  shall  proceed   with the trial or proceedings in which the matter in  issue is also directly and substantially  in  issue  in a previously  instituted suit  or proceeding between the same  parties, or between  parties  under whom they  or any  of them  claim, litigating  under the same title, where  such suit or proceedings  is pending  in the same or  other  court having jurisdiction in Kenya  to grant the relied claimed.”

12.   From the foregoing provisions of the law thesuit herein can only be ressubjudice  if: -

the matter in issue is also directly and substantially in issue in   Nakuru High Court Civil Case No. 19 of 2006; or

if  the parties  in the other  suit (Nakuru High Court Civil Case No. 19 of 2006) are the same  as the  parties in the current  suit  or  are  the same parties   under whom the parties in the current  suit   may  then claim.

13.    I have taken the liberty to ascertain the  issue(s) in  Nakuru High Court Civil Case No. 19 of 2006 and the issue(s)  in the current suit and also the parties  in both suits.

14.   Whereas  the issue  in the instant  suit relates to the respondents rights over Land parcels  the issue  in Nakuru High Court Civil Case No. 19 of 2006 relates to the rights of  John Lokorio  overNakuru/ Ngongongeri/1. The issues in that suit differ from the issues underconsideration in the current suit. I also note that the parties in the said suit  are  not similar to the parties  in this suit.  For  these reasons,  I find  and hold that  the  suit herein  is not  res sub  judiceNakuru High Court Civil Case No. 19 of 2006.

15.  Going back to the prayer sought for injunction in the current application, the principles of granting orders of injunction are well settled. Therefore, I wish to refer and rely on the celebrated case of Giella vs Cassman Brown (1973) EA 358in which the conditions for the grant of an interlocutory injunction were settled as follows:

“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is on doubt, it will decide an application on the balance of convenience.”

16.  Have the applicants made out a prima faciecase with a probability of success? In Mrao vs First American Bank of Kenya Limited & 2 Others (2003)KLR 125a prima facie case was described as:

“... includes but is not confined to a 'genuine and arguable case'. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

17.  In the present case, I have considered the facts deponed in the affidavit, the evidence annexed thereto and the authority relied on.it emerges from the material before the court that the plaintiffs have a genuine and arguable case. The applicants  case is that  being  the  registered  owners  of  the  suit  properties, their  interest in the suit property is indefeasible. Their  aforementioned  contention is based on  Sections 27 and 28 of  the  Registered  Land Act,  Chapter  300 laws  of  Kenya  (repealed)  replicated in Sections 24 and 25of the Registration of Lands Act 2012.

Sections 24 and 25 of the Registration of Lands provide:-

24 (a)     the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

(b)……………………………………………………………

25. (1)     The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—

(a)      to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b)      to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.

The courts are required under section 26 to take certificates of titles as prima facie evidence.

26. . (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

(a)       on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b)    where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

18.  On the other hand, the Respondents claim is based on the verbal directive by the former head of state President Moi to the Commissioner of Lands to allocate the respondents land. They allege that instead of following instructions, the Commissioner allocated himself the land meant for them and thereafter sold the same to the applicants. The burden is on the respondents to prove that the suit parcels were indeed allocated to them by the former head of state.  This was Government land and the defendants have exhibited no evidence that the procedure for acquiring Government land as provided for under Part IV of the Government's Land Act was complied with.

19.   This suit relates to land parcel No.Nakuru/Ngongongeri/ 1676 which was subdivided into plots Nos. Nakuru/Ngongengeri/1817-1831. The defendants have not demonstrated how land parcel No. Nakuru/Ngongongeri/1676 was excised from land parcel No. Nakuru/Ngongongeri/1 and subsequently subdivided into Nakuru/Ngongongeri/1817-1831. The copies of titles annexed by the applicants are for ParcelsNo.Nakuru/Ngongongeri/1817,1819,1820,1821,1822,1823,1824,1825,1826,1828, 1829 & 1831. The land which the respondents allege to be in occupation is Nakuru /Ngongoreri/1. This is evident from paragraph 3 of the 2nd respondent replying affidavit where he depones;

“That my co-defendants, myself and  several  other  persons  numbering  over  100 have  been residing on  and  using  NAKURU /NGONGORERI/1 for  a period of  over  20  years  as  squatters”

20.   I am unable to find anything that entitles the defendants to this land. They have also being unable to demonstrate that their claim constitutes overriding interests within the meaning and intendment of section 30 of the Registered Land Act Cap 300. Not even section 30(g) can come to the aid of the defendants.

21.    The report by the District land surveyor Nakuru dated 26th March confirming that he had established the boundaries between Nakuru/Ngongongeri/1 and Nakuru/Ngongongeri/ 1817 to 1831 states that the parcels are different and this has not been disputed by either party.

22.   Having found that the applicants have a prima facie case l do not find the need to consider the second and third principles for granting an injunction.

23.   For the above reasons l find that the application for injunction is merited and grant prayer 3 in the Notice of Motion dated 12th March,2012 with costs.

Dated and Signed at Nakuru this 16thday of May 2014.

L N WAITHAKA

JUDGE

PRESENT

M  Akango   for the  Defendants

N/A for the  plaintiff

Emmanuel  Maelo: Court  Assistant

L N WAITHAKA

JUDGE