Hesbon Pyatich Lokwangar v Kenneth Lotodo Loyatum, Land Registrar,West Pokot County & Julius Charito Kanyongu [2021] KEELC 4484 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC APPEAL NO. 6 OF 2020

HESBON PYATICH LOKWANGAR...........................................................................APPELLANT

VERSUS

KENNETH LOTODO LOYATUM....................................................................1ST RESPONDENT

THE LAND REGISTRAR,  WEST POKOT COUNTY..................................2ND RESPONDENT

JULIUS CHARITO KANYONGU...................................................................3RD RESPONDENT

RULING

The Application

1. By a notice of motion dated 7/9/2020 and filed on 10/9/2020 brought under provisions of Sections 1A, 1Band63(c)of theCivil Procedure Act andOrder 42 Rule 6of theCivil Procedure Rules and Section 13and18 of the Environment and Land Court Act, the appellant seeks the following orders:-

(1) …spent

(2)That this court be pleased to grant a temporary injunction restraining the 1st defendant/respondent by himself, his servants or agents from interfering with the suit land comprised in title No. West Pokot/Chepareria/2690 measuring 2 acres or thereabouts in terms of interim orders made by Hon. M.M. Nafula in Kapenguria PMC Land Case No. 17 of 2020 pending the hearing and determination of the appeal herein.

(3)That any other orders the court shall deem fit.

(4)Costs be provided for.

2. The application is supported by the supporting affidavit of the applicant sworn on 7/9/2020. The application is premised on the grounds that: the applicant had filed suit seeking for cancellation of title issued to the 1st respondent on grounds of fraud; in the suit in the court below the applicant filed an application for injunction; that in the application he demonstrated that he has occupied the suit land since 2007; that on 26/8/2020 the court dismissed the said application and the applicant filed the instant appeal in this court; that the 1st respondent has taken advantage of the ruling to invade the suit land and that unless restrained the appeal shall be rendered nugatory. He avers that the 1st respondent is currently constructing a structure on the suit land. He also alleges that the land was sold to the 1st defendant by the 3rd defendant.

The Response

3. The 1st defendant filed a replying affidavit sworn on 30/9/2020. His response is that he is the father-in-law to the appellant and that he is the registered owner of the suit land; he exhibits a copy of the title deed to demonstrate the fact of his ownership; that he has remained in possession of that land since purchase in 2017; that the suit land earlier formed part of land owned by the 3rd respondent; that the 3rd respondent sold 3 acres to the appellant and his wife; that the appellant’s wife settled on the 3 acres and started cultivation thereof upon her separation from the appellant; that subsequently the applicant invaded the land; that subsequently following some dispute resolution process conducted during the pendency of a criminal claim against the appellant, the land was shared between the appellant and his wife and the appellant sold his share to a third party while his wife sold her share to the 1st respondent. The 1st respondent deponed that in dealing with the injunction application before it the court below was convinced that he would lose his land which he was in occupation of in the event an injunctive order issued, and so dismissed the appellant’s application. He exhibits in his current replying affidavit a copy of the replying affidavit he had filed in the court below in opposition to the applicant’s injunction application, which the applicant has not exhibited in his affidavit and which omission he attributes to the applicant’s desire to conceal facts; there was no rejoinder by the applicant to this last allegation.

4. I have also noted that the affidavit of Eunice Cheporok Pyatich the appellant’s reputed wife was filed in the trial court and its contents corroborate those in the 1st respondent’s replying affidavit.

Submissions

5. The appellant filed his written submissions on 25/11/2020. The 1st respondent filed his submissions on 3/12/2020.  I have perused the court record and I have found no submissions filed on behalf of the 2nd and 3rd respondents.

Determination

6. The issue that arises in the instant application is whether the appellant is entitled to temporary injunction pending the hearing and determination of the instant appeal.

7. The 1st respondent has a title to the suit land. The chronology of events he has set out in his replying affidavit to the instant injunction application have not been controverted. In particular it is not denied that the 1st respondent has title to the land. Section 26of theLand Registration Act states as follows:

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.

8. The 1st respondent’s rights to the suit land are therefore protected and only the factors referred to in Section 26of theLand Registration Act, if proved, may defeat his title.

9. It is rather premature in these proceedings to decipher whether there was fraud or involvement of a corrupt scheme, illegality or misrepresentation in the 1st respondent’s acquisition of the title to the suit land in his name. The determination of that issue has to await the hearing of the main suit in the trial court.

10. One of the conditions for the grant of an injunction is that the applicant must establish that he has a prima facie case. The appellant has not exhibited copies of any of the pleadings from the lower court including his own plaint and it is unclear how he would expect this court to determine the issue without a perusal of those pleadings.

11. Further even in the absence of those pleadings the alleged possession of title to the land by the 1st respondent warrants a closer scrutiny of the instant application by this court before any injunction may be granted.

12. In this court’s view the applicant has not established a prima facie case for two reasons: one, he has not demonstrated that the title is in his name and two, he has been unable to dislodge successfully the allegations of possession put forward by the 1st respondent.

13. As to whether the applicant would suffer any loss that would not be capable of compensation by way of damages this court finds that the applicant has not demonstrated that he is in occupation of the suit land or that he has any developments thereon. It is hard for this court to see how he would suffer any loss, let alone any of an irreparable nature.

14. The applicant has failed on the two main limbs of the conditions set out in the case of Giella Vs Cassman Brown [1973] EA 358.

15. However this court must remember that one court in times of yore observed, to paraphrase, that there are many cases that appear unarguable and yet later it transpired that they were indeed arguable. Having said that, it is worthy of note that there is an appeal before this court and it has to be disposed of and it would be better to rule on a balance of convenience in this matter if only to preserve the suit land from waste, damage or disposal during the pendency of the suit.

16. I find that the balance of convenience lies in preserving the current status of the suit land.

17. In disposing of the instant application, I therefore issue an order prohibiting the 1st respondent from any further developments on the land save cultivation and harvesting of annual crops pending the hearing and determination of the instant appeal.

18. The appellant shall file and serve his record of appeal within 30 days of this order failing which the injunctive order issued herein above will be deemed automatically vacated. The appeal shall be mentioned on 10/3/2021 to ascertain compliance and for any further necessary directions.

It is so ordered.

Dated, signedanddeliveredatKitale via electronic mail on this 2ndday of February, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.