Golicha Roba Toto v Zeinab Abdikadir & County Government of Isiolo [2015] KEHC 1192 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ENVIRONMENT AND LAND CASE  NO 77 OF  2013

GOLICHA ROBA TOTO.....................................................................................................................PLAINTIFF

VERSUS

ZEINAB ABDIKADIR................................................................................1ST DEFENDANT/RESPONDENT

COUNTY GOVERNMENT OF ISIOLO................................................ 2ND DEFENDANT/RESPONDENT

RULING

This application is dated 26th January, 2015.  The application states that it is predicated upon Section 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 40 rules 1 and 2 of the Civil Procedure Rules.  The application seeks the following orders:-

THATthis application be certified urgent and heard on priority basis.

THATthis Honourable Court be pleased to issue an order of injunction restraining the 1st Defendant either by herself, her servants and or agents from alienating, entering, building or in any way interfering with the plaintiff's occupation or use of residential Plot No. 20 Isiolo Town until this application is heard and determined.

THATthis Honouarable Court be pleased to issue an order of injunction restraining the 1st Defendant either  by herself, her servants and or agents from alienating, entering , building, or in any way interfering with the plaintiff's occupation or use of residential Plot No. 20 Isiolo Town until this suit is heard and determined.

THATthe costs of this application be provided for:-

The application is supported by the affidavit of GOLICAH ROBA TOTO, the plaintiff/ applicant and has the following grounds:-

The plaintiff was allocated and is the owner of residential plot No. 20. Isiolo Town.

That beacons on the ground are clear so are the boundaries.

The 1st Defendant has been unlawfully claiming the same Plot hence the filing of this case.

The 1st defendant has now unlawfully heaped some building material on the Plot despite the filing of this case and unless stopped she will start permanent construction.

That the Court ought to intervene urgency to avoid breach of peace.

Interim Orders in terms of prayer 2 were granted exparte on 08/07/2014 about 1 year and 4 months ago.

In his Submissions the plaintiff says that he has demonstrated that he has a prima faciecase and that his application discloses  that he may suffer irreparable loss if the Injunctive Orders sought in this application are not granted.  He cited and  tendered several authorities in support of his assertions.

The defendants submit that the plaintiff has not demonstrated that this application is meritorious.  They aver that the plaintiff has not demonstrated aprima  facie case or that he stands to suffer irreparable damage if the orders he seeks are not granted.  The defendants further assert  that the balance of convenience does not tilt in the plaintiffs favour as the 2nd defendant has the legal mandate to administer , dispose of or otherwise determine  the use of  public land. They assert that the County Council of Isiolo, the predecessor of Isiolo  County Government had in a meeting held on 3rd November, 2011, under Minute 9/W.T.P & M/NOV/2011 finalized the re-allocation of the various balloters as it was decided through that minute that developed plots should not be demolished and that  those whose ballots fell on such plots should be relocated.

Some of the issues canvassed by the parties can only be determined after the main suit has been heard.  The Court of Appeal in the case of  Mbuthia Versus Jimba Credit Corporation [1988] KLR1 gave  erudite guidance regarding how issuance of interlocutory Injuctive Orders should be handled. The Court opined as follows:-

“The correct approach in dealing with an application for an interlocutory injunction is not to decide the issue of fact, but rather to weigh up the relevant strength of each side's propositions.  The lower court judge had gone beyond his proper duties and made final findings of fact on disputed affidavits.”

I will not delve into  determination of disputed facts.

I note that in his Submissions at Page 2 when dealing with issues for determination, the 1st defendant stated as follows:-

“In Mbuthia Versus Jimba Credit Corporation (1988) KLRI the Court echoed that in an application for interlocutory injunctions, the Court should only weigh the relative strength of the parties cases and in matters relating to land it is usual to grant injunctions”. Those are their words.

I have carefully  examined the averments. Submissions and the authorities of the parties in support of their assertions.  After weighing the relative weight  of the parties propositions, I issues the following orders:-

Prayer 3 in the application is granted.

Costs shall be in cause.

The plaintiff should fully comply with order 11, CPR, within 30 days of today and the defendants should do so within 30 days after the plaintiff serves upon them his compliance documents.

Upon closure of compliance with Order 11, CPR, the parties should obtain a date for directions from the registry.

It is so ordered.

Delivered in open Court at Meru this 28th day October, 2015 in the presence of:-

CC:Daniel /Lilian

Rimita for Plaintiff /Applicant

Mutua for Respondents/Defendants

P. M. NJOROGE

JUDGE