Henry Weng’ang’a Opicho v Boaz Malesi & George Kiombe [2018] KEELC 77 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 38 OF 2018

HENRY WENG’ANG’A OPICHO...........PLAINTIFF/APPLICANT

VERSUS

BOAZ MALESI............................1ST DEFENDANT/RESPONDENT

GEORGE KIOMBE.....................2NDDEFENDANT/RESPONDENT

R U L I N G

1. By an application dated 10/4/2018 the plaintiff/applicant sought an order of injunction against the defendants to restrain them from trespassing on or in whatever other manner interfering with the plaintiff’s quiet possession of Land Title No. Kiminini/Kimininini Block 8 Birunda/191.

2. The application is brought under the provisions of Order 40 Rules 1,2,and4 Of The Civil Procedure Rules 2010. The grounds on which the said application is made are as follows:-

(i) That the plaintiff/applicant is the sole registered owner of Land Title No. Kiminini/Kiminini Block 8 Birunda/191 the suit land herein.

(ii) That the plaintiff/applicant has been in possession and use of the said land since allocation by Birunda Company.

(iii) That the 1st defendant/respondent without any colour of right is illegally trespassing into plaintiff’s/applicant’s land and forcefully ploughed it and infact he has since indicated he is about to sell portions to third parties without applicant’s consent, knowledge and/or authority yet he has his own land.

(iv) That the 2nd defendant/respondent claims to be trespassing in applicant’s land without instructions from the 1st defendant/respondent.

3. The application is supported by the affidavit of the plaintiff/applicant dated 10/4/2018.  In that affidavit the grounds stated above are reiterated. In addition, the plaintiff avers that his land measures 1. 62 ha.; that he holds 18 shares in Birunda Farmers Company, that the 1st defendant is the owner of plot number 245 measuring 5 acres; that upon being warned to stop the acts of trespass the defendants have threatened violence upon the plaintiff; that the land is what he depends upon for survival, that if the injunction is denied he would suffer loss for which he can not be compensated by way of damages and that he has a prima facie case.

4. When this matter came up on the 11th April 2018 an interim injunction was issued. On the 24th April 2018 the defendant’s counsel stated that his client had been on the suit land for 39 years which statement was not controverted and this court found it fit to only order that the status quo prevailing then be maintained by the parties pending the hearing of the application.

5. In reply to the instant application the 1st defendant filed a replying affidavit dated 20/42018. He averred that the plaintiff is one of the directors of Birunda Farm and that while abusing  that capacity he fraudulently registered the suit land in his name though it is the 1st defendant’s land; that the defendant is a shareholder and was allocated the suit parcel in the year 1980 when he took possession thereof and has since then developed the said parcel; that however since various mutations have been prepared which have resulted to change in numbers, his plot which used to be Plot No. 99 now bears the number 191 while the plaintiff’s plot changed from Plot No. 203to564; that during the year 2017 when the Government Of Kenya sought to have the Birunda Members to have title deeds the plaintiff placed his name against the 1st defendant’s plot number and thus secured the title to the defendant’s plot in his name. The defendant averred that he has even disposed of some of his land during his stay thereon, and that the buyer and the plaintiff border one another and have been living in that manner for 16 years. He maintains that the plaintiff has never been in occupation of the land. The 1st defendant has annexed photographs of his homestead and the houses look fairly old. From the annextures exhibited by the 1st defendant parcel No. 586 which became No 191 is only 1. 96 Ha while parcel No 564 is 13. 4 Ha. It is this larger second parcel that he states the 1st defendant does not lay claim to yet.

6. The applicant filed further affidavit dated 4/5/2018. In that affidavit it is averred that allocation of land at Birunda Farmers Company is done by the board of directors who follow a certain procedure and that the respondent was never allocated the suit land at any time.  He also claims that there is confusion as to which plot the 1st defendant is claiming and denies that he ever committed the acts of fraud alleged by the 1st defendant. He avers that the 1st defendant was issued and received his title deed for Plot No.245 on 24/5/2017 and exhibits a Certificate of Official Search in proof of that. He disputes the veracity of the area list exhibited by the 1st defendant as “BM-3”. He also avers that he has never seen the alleged buyer in his land and that it is not true that the 1st defendant has been on the land for 38 years.  He claims to have planted maize on the land when there were no crops planted by the 1st defendant and that the 1st defendant ploughed the whole crop down. He avers that his title LR No. Kiminini/Kiminini Block 8 Birunda/191 is sacrosanct and indefeasible and that the rights of a registered of a proprietor are protected by law.

7. The plaintiff filed his submissions on 9/5/2018 and the 1st defendant filed his on 4/6/2018.  I have considered those submissions.

8. The issues this court has to determine are (1) whether the applicant has demonstrated that he has a prima facie case with probability of success, (2) whether, if the injunction orders do not issue as prayed the applicant may suffer irreparable injury and if the court will be in doubt, what is the balance of convenience. These are the conditions set out in the well-known case of Giella Vs Cassman Brown [1973] EA 358.

9. The applicant’s case is that he has a title deed to the land. He states that his rights to the land are therefore indefeasible. Whether or not the plaintiff has the title to the land, the immediate question to be dealt with is the claim by the 1st defendant that he has been on the land for 38 years is true. Beyond that, the issue of long occupation and use and its effect on title to land would be established at the hearing of the main suit. Possession would, if proved for now, provide this court with some direction regarding the determination of this application.

10. The plaintiff alleges that the trespass on the land was committed on the 9th March 2018. The plaintiff does not state when he ever took possession of the land in his affidavit dated 10th April 2018 in support of the application. He does not exhibit any evidence of possession.

11. On the other hand as I have already observed before the 1st defendant has by his affidavit dated 20/4/2018 exhibited photographs of houses on the land which he says that he built and which fact is not controverted by the plaintiff. In fact in the plaintiff’s further affidavit of 4th May 2018 and in his submissions dated 7th May 2018 there is no allegation by the plaintiff in his application that the 1st defendant entered the land and started constructing any buildings thereon; I find this omission to be strange in view of the fact that “possession” remains the most ubiquitous feature of the defendant’s response to the injunction.

12. It appears that the plaintiff has, like the proverbial ostrich buried his head in the sand and willingly refused to confront this issue whereas his submission on it would have been of great value in this application; however, whereas he is at liberty to plead as he wishes, this avoidance does not aid his case in this application and this court is inclined to believe that regardless of his title, or not and whether he has a prima facie case or not, the 1st defendant is in possession of the suit land and that he would be greatly inconvenienced if the injunction issued at this stage of the proceedings.

13. In addition, the plaintiff has not demonstrated that he entirely relies on the land for his dwelling purposes or livelihood purposes. I also find that the plaintiff has concealed material facts which conduct this court does not condone. He who comes to equity must come with clean hands and an injunction is an equitable relief. Having said that much I think it is clear that the plaintiff is the holder of the title to the land and he has a prima facie case.

14. On issue of whether the plaintiff would suffer irreparable loss or damage, I state here expressly on the basis of the facts set out in this ruling that he would not.

15. I therefore find that the plaintiff’s application is not merited. The application is hereby dismissed with costs.

Dated, signed and delivered at Kitale on this 25th day of July, 2018.

MWANGI NJOROGE

JUDGE

25/7/2017

Coram:

Before - Mwangi Njoroge Judge

Court Assistant - Picoty

Mr. Kaosa holding brief for Nasike for the plaintiff

N/A for the defendant

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

25/7/2018