Joel Komu Wainaina v Daniel waweru Nduati [2013] KEHC 1737 (KLR)

IN THE HIGH COURT OF KENYA

AT NAKURU

ENVIRONMENT AND LAND COURT

HCC NO 243  OF 2012

JOEL KOMU WAINAINA  .................... APPLICANT

VERSUS

DANIEL WAWERU NDUATI……………….RESPONDENT

RULING

By a Notice of Motion dated 13th July, 2012 brought under order 40 rule 1, 2, 4, order 51 rule 1, 3(1) of the  civil procedure rules, 2011 and section 3A, 1A and 1B of the civil procedure Act, the applicant, Joel KomuWainainaseeks the following orders among others:

That pending the hearing and determination of this suit this honorable court be pleased to issue an order of temporary injunction restraining the defendant by himself, hisagents and servants from entering, trespassing, cutting down trees, erecting structures, selling, transferring, alienating, disposing, tilling, cultivating, leasing or in any way interfering with the subject parcel of land known as Subukia/ Subukia Block 13/1804( Kianwe) (''suit land'') and a copy hereof be served upon the OCS SubukiaPolice station for effective compliance.

That costs of this application be provided.

The grounds upon which the application is premised are found in the body of the application, supporting and supplementary affidavits sworn by Joel Komu Wainaina on 13th July 2012 and 30th July 2012.

The applicant's case is that he is the registered owner of the suit land measuring 0. 8094 hectares having been issued with a title deed on 9th May, 2012: That sometime thereafter upon visiting his land, he found that the respondent had entered the suit land and started  cultivating without the his consent: That when he conducted a search in the lands registry, it revealed that he was still the registered owner:That the applicant was therefore very shocked when the respondent reported to the Police that the applicant had falsified some documents and caused malicious damage leading to the applicant's arrest: That the respondent together with the Assistant Chief Kandie sublocation, intimidated and forced him to sign an agreement that he owed the defendant one acre before he could be released on bond: That it has now become difficult for him to access his land where he intends to erect a family home andcultivate causing him damage and loss.

Daniel NduatiWaweru the respondent herein, swore  a replying and a further affidavit on 27th July,2012 and 2nd August,2012. He strenuously opposed the application and deponed that the applicant had concealed vital information therefore guilty of material non disclosure: That he is the lawful unregistered owner of the suit land excised from Subukia block 13/411 having bought 11/2 acres of land from Simon BusyekaThumbi : That when he went to take possession he found that the vendor had sold to the plaintiff his 1/2 acre, so he took possession of the remaining 1 acre, started cultivating, put up a semi permanent house and a pit latrine: That on 30th April,2012 he received a letter from the applicant telling him that he had trespassed on his land and thereafter embarked on destroying his fence prompting the respondent to report the matter to the Police:That they were both summoned to the Police station where they held a meeting in the presence of the OCS, Chief Kianoe and three village members where it emerged that the applicant had processed one title capturing his portion of  land and that of the respondent's and had charged the title to Equity bank to obtain a loan: That the applicant also confirmed that the respondent had been in occupation of the suit land since 2004: That after it emerged that the applicant had obtained the title fraudulently and he could face criminal charges the applicant pleaded with the respondent not to press charges and he would in exchange  return the respondent's land and signed an agreement drafted by the chief without any coercion .

I have considered the application, affidavits sworn in support of each of the rival parties. Being an application for temporary injunction, the strictures enunciated in the famous Giella V Cassman Brown & Company Limited (1975) EA 358and later in the Kenya Commercial Finance Company Limited V Afraha Education Society (2001) 1 EA 8must be satisfied.

First, the applicant must show that he has a prima faciecase with a probability of success, secondly, it must be demonstrated that the applicant might suffer irreparable injury if the injunction is not issued and thirdly, should the court be in doubt, it will decide the application on a balance of convenience. These principles are to be applied sequentially in that the court need not consider the second and third principles if it finds that the applicant has a prima faciecase.

In considering whether the applicant has established a prima faciecase, I shall not dwell on the merits of the case but merely look to see whether the applicant's right has been violated by the respondent.

In support of his case, the applicant has exhibited a title deed in his name for the suit land, a certificate of official search, an agreement dated 6th July, 2012 between him and the respondent authored by the chief Kianoesub locationand a cash bail receipt. The applicantclaims  that  being  the  registered  owner  of  the  suit  property, his interest in the suit property is indefeasible. His aforementioned  contention is based on  Section 27and 28  of  the  Registered  land Act,  Chapter  300 laws  of  Kenya  (repealed). The  sections proves:-

“(27) Subject   to this  Act-

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

(b)……………………………………………

28. The right   of  a proprietor, whether acquired on first  registration or whether  acquired  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 lease, charges and  other encumbrances and to the conditions  andrestrictions,  if any, shown in the register; and

(b) unless  the contrary  is expressed  in the register, to such liabilities, rights and  interests  as  affect the same  and  are  declared  by section 30  not  to require Noting on the  register ,Provided that nothing in this  section shall be taken  to relieve  a proprietor  from any duty  obligation to which he  is subject as a trustee.

Similarly, the respondent has exhibiteda sale agreement dated 25th September, 2004 between him andSimon BusyekaThumbi for the purchase of 11/2 acres to be excised from plot no. Subukia/ Subukia Block 13/411,some photographs, a demand letter from the plaintiff's counsel dated 30thApril ,2012, a letter in response to the demand letter dated 2nd July, 2012 and a letter from equity bank showing the suit land was being held as security by them.

The contention by the applicant is  contested  by the respondent who has averred that the  applicant’s  title  was fraudulently obtained and that itsownership is subject of  his unregistered interest thereto( as a person in possession or  occupation of the suit land).

It is common ground that the applicant is the registered owner of the suit land.As such, he is prima facie the indefeasible owner of the suit  land, together with all privileges and  appurtenances  thereto. However,  I hasten  to point  out that  unless there is evidence to the contrary the applicant’s  rights  in the suit land are by  dint those of the  provisions  of section  30  of the Registered  land Act ( which  governed the suit  property when registration was effected) subject to overriding  interest  that  may affect the  property  even though  not  noted  in the register.

Such  overriding  interests  are expressed under Section  30 ( supra) to  include the rights  of a person  in  possession or actual  occupation of land to which   he is entitled  in right  only  of  such possession  or occupation, save  where inquiry  is made  of such  person  and the rights  are not disclosed.  See section  30  (g) of the  Registered  Land Act.

Whereas the applicant is prima  facie the  owner of the  suit land, there  is evidence that the  respondentdid purchase land from Simon BusyekaThumbi, the same person who sold the land to the applicant and that the respondent is in occupation of the suit property.  The applicant, through paragraphs 3,8,9 and 12 of the  affidavit he swore  on 13th July , 2012  has  admitted  that the respondent is  in occupation of the suit land.

As the  court when  considering  whether  or  not  to grant a temporary  injunction is  not supposed  to  make any  definitive  finding  on  issues of  law  and  fact,  from  the  affidavit evidence, I find as a fact  that the  applicant’s ownership  of the suit  property  is subject to the respondents rights as  a person  in occupation. Whereas  the  applicant  is  seeking  an  injunction  to restrain  the respondent  from entering, trespassing, cutting down trees, erecting structures, selling, transferring, alienating, disposing, tilling, cultivating, leasing or in any way interfering with the subject parcel of land  it  is  clear from the  affidavit evidence  that by the  time  he  came to court  the  respondent  was  already  in possession  of the  suit  property  . See  Yego  V  Tuiya&  another 91986) KLR 726  where the  Court  of Appeal  held:-

“the order of the judge requiring the  appellant  to  deliver up  vacant  possession of the  land exceeded  the terms  of the respondents’ application,  and  under  the  civil  procedure  Rules order XXXIX Rule  1, this was not  a proper  thing  to do.”

Also  seeEsso (K) Ltd V. Mark MakwataOkiya civil appeal No. 69  of  1991 where  the court of Appeal  held:-

“ the purpose  of Injunction is  to  maintain  status quo.  Injunctions  are  not  to be  granted if the event  meant to be restrained  has taken place; and  courts  should  not  grant orders  not  prayed for.”

Although  this court initially  granted  an interim  order  in favor  of the applicant,  it  is not  bound to follow  its  decision where  facts  emerge  in a  different  light. See Uhuru Highway Development Ltd V. Central  Bank  of Kenya Civil  Appeal  No.140  of  1995  the Court of Appeal  held;

“ views  expressed  by a court at  an  interlocutory  stage are  not binding  on the trial court  as facts may  emerge  in a different light, or  views  may change  or the  court may  not  follow  its own decision  when found to be wrong. Concluded  views  can  only  be  expressed  on facts  not  in dispute, facts  which stand  out  as  clear  as day light.”

From  the  affidavits presented in this  application  it is clear  that by the time the applicant went to court the suit land had been the subject of a protracted  dispute  between  the applicant  and the respondent. Having found that the respondent was in occupation when the  applicant  went to court  and there being no evidence  to  prove  that he was not in occupation  when the property  was registered  in the name  of the applicant,  I decline to grant the order sought.

The upshot of the foregoing is that the plaintiff’s application dated 13/7/2012   is dismissed with costs.

Dated, Signed and delivered in open Court this 14th day of August 2013.

L N WAITHAKA

JUDGE

Present

Ms Said holding for  Njeri Njagua Defendant

N/A for plaintiff

Stephen  Mwangi: Court Clerk

L N WAITHAKA

JUDGE