Jane Chepkorir Maritim v Mary Chemindil Mberia, Graham Waliaula B Soita & Catherine Waliaula Khainza [2020] KEELC 2182 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 65 OF 2019

JANE CHEPKORIR MARITIM..............................................PLAINTIFF

VERSUS

MARY CHEMINDIL MBERIA....................................1ST DEFENDANT

GRAHAM WALIAULA B. SOITA...............................2ND DEFENDANT

CATHERINE WALIAULA KHAINZA.......................3RD DEFENDANT

RULING

1. This is a ruling in respect of the application dated 17/1/2019brought by the plaintiff. It seeks the principal orders which I set out verbatim as hereinbelow:-

(1)…spent

(2) …spent

(3) That while pending the hearing and determination of this suit, this court be pleased to extend the interlocutory injunction restraining the defendants, their agents or servants or anybody claiming under them from entering, cultivating, planting, undertaking any construction or in any other way whatsoever interfering with the plaintiffs/applicant’s user of the land comprised in Title Nos. Trans-Nzoia/Kapkoi/826 and 827.

(4) That in the alternative the court be pleased to order that the status quo which prevailed before the institution of the suit, and whereby the plaintiff/applicant has been in sole possession of the land comprised in Title Nos. Trans-Nzoia/Kapkoi/826 and 827, be maintained while pending hearing and determination of the application herein and while pending the hearing and determination of the pending suit.

(5) That the Officer Commanding Kwanza Station, be directed to ensure that the orders made by this court are obeyed.

(6) That costs be provided.

2. The application is brought under Sections 3, 3A and 63 (c) and (e) of the Civil Procedure Act and Order 40 Rule 1, 3 and 4 of the Civil Procedure Rules 2010 and Section 19(3) (i) of the Environment and land Court Act 2011

3. The application is supported by the affidavit of the plaintiff sworn on 17/1/2020. The said affidavit reiterates the same matters set out in the grounds at the bottom of the application.

4. The grounds upon which the application is premised are as follows: that from 2006 todate, the plaintiff has been in sole possession of the land now comprised in Title Nos. Trans-Nzoia/Kapkoi/826 and 827and both parcels whereof were subdivided from parcel No. Title No. Trans-Nzoia/Kapkoi/660; that the 1st defendant’s father namely Nicholas Mberia and who was by 2006 a District Commissioner, sold Plot No. 660 to the applicant at Kshs.750,000/= and which was fully paid; that the late Nicholas Mberia had obtained the allotment for Plot No. 660 in Kapkoi Settlement Scheme in his daughter’s( the 1st respondent’s ) name and he sold the plot on her behalf; that after 2006, the 1st respondent has never taken possession of the land that was sold to the applicant and which was comprised in Plot No. 660 in Kapkoi Settlement Scheme; that the 1st respondent had at all times promised to process the title for Plot No. 660 in favour of the applicant and even during 2018 she paid to her through the brother Patrick Kimtai arap Chumba the sum of Kshs.22,450/=; that instead of processing the title in favour of the applicant, the 1st defendant processed the same in her own name and the title for Title Nos. Trans-Nzoia/Kapkoi/660 was issued to her on 20/11/2018; that the 1st respondent subdivided parcel No. Trans-Nzoia/Kapkoi/825and827behind the applicant’s back and then transferred parcel No. 826 to the 2nd and 3rd respondents and title was issued to them on the 15/5/2019; that the title for parcel No. 827 was registered in the 1st respondent’s name; that the applicant has a prima facie case with probability of success based on trust; that the applicant would be subjected to irreparable damage if the orders sought are not granted; that the respondents forcefully entered into the land with a surveyor and beacons were put in place on or about 13/01/2020; that on the 16/1/2020 the 2nd and 3rd defendants came to parcel No. 826 with fencing and building materials and unless restrained, they will cultivate and construct houses on the land which she has used since 2006 and thereby evict the applicant during the pendency of this case; that service of the application in the 1st instance will defeat the very purpose that the application is meant to protect and that the balance of convenience would also tilt in the applicant’s favour since she has always been in possession.

5. In response to the application dated 17/1/2020, the 2nd defendant filed a replying affidavit dated 3/2/2020. His response is that there is no prima facie case; that there is no evidence of ownership on the part of the plaintiff; that the applicant should have sued the estate of Nicholas Mberia if the agreement was made between them; that the property did not belong to Mberia; that there is no risk of irreparable injury; that that the 1st respondent and not the plaintiff has been in possession of the land and in any event the plaintiff has not demonstrated evidence of possession; that the 2nd and 3rd respondents are only exercising their rights by fencing the property which process can be undone; that the 2nd and 3rd defendants only own plot no 826.

6. Stephen Kamau Iburu filed supplementary supporting affidavit dated 18/2/2020 in support of the plaintiff’s application dated 17/1/2020. He deponed that he is the owner of the neighbouring parcel no 661 and that sometime in 2006 the plaintiff informed him that the plot comprised in 660 had been sold to her by one Nicholas Mberia and that the plaintiff has been in uninterrupted possession of that parcel from 2006 to 2019.

7. The applicant filed her submissions on 6/3/2020. I have gone through the record and found no submissions filed on behalf of the defendants. I have considered the application the response and the submissions filed.

8. The issues that arise from the application are as follows:

(a) Should the interlocutory injunction restraining the defendants, their agents or servants or anybody claiming under them from entering, cultivating, planting, undertaking any construction or in any other way whatsoever interfering with the plaintiffs/applicant’s user of the land comprised in Title Nos. Trans-Nzoia/Kapkoi/826 and 827 or should a status quo order issue?

(b) Who should bear the costs of the application?

9. The issues are addressed as herein under:

10. I have perused the evidence on the record and it is my finding that the plaintiff has a prima facie case with a probability of success and that she also demonstrated that she was in possession of the suit land. Though it may be that case that she may not suffer any irreparable damage there is no need to allow the status quo to be disturbed while this suit is pending.

11. In my view the order of interim injunction ought to be firmed till the hearing and determination of this suit.

(b) Who should bear the costs of the application?

12. The costs of the application shall be in the cause.

CONCLUSION

13. Consequently this court finds that the application dated 7/1/2020 has merit. I grant the same in terms of prayers no 3 and 5 thereof. The costs of the application shall be in the cause.

It is so ordered.

Dated, signed and delivered at Nairobi via electronic mailon this29th day of May 2020.

MWANGI NJOROGE

JUDGE, ELC, KITALE.