JOHNSON KIMUTAI KIBENEI & CHEPKOREM CHUMO JOHN v DAVID LEKUTA OLE SULUNYE & ALLAN RONO [2004] KEHC 120 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) CIVIL CASE 868 OF 2004

1. JOHNSON KIMUTAI KIBENEI……...................................................……….1ST PLAINTIFF

2. CHEPKOREM CHUMO JOHN……….................................................……..2ND PLAINTIFF

VERSUS

1. DAVID LEKUTA OLE SULUNYE……...........................................…….1ST DEFENDANT

2. ALLAN RONO……………............................................………………….2ND DEFENDANT

RULING

In the application dated and filed on the 4th October 2004  brought by way of Chamber Summons, the First Defendant/Applicant seeks (lifter alias a temporary injunction to restrain the Plaintiffs/Respondents from committing arts, amongst others, of waste or otherwise interfering with the Applicant’s user and quiet enjoyment of the piece or parcel of land known as Title Number Narok/Cismara/Ololulunga/10079  until the determination of the suit herein. The application is based upon the three grounds set out therein and is supported by the affidavit of the First Defendant/Applicant made also on the 4th October 2004.

The application is opposed by the 1st  Plaintiff/Respondent relying  on his Replying Affidavit made on the 9th  November 2004.

At the hearing of the application, Mr. Harrison Kinyanjui, learned counsel for the Applicant, argued that the Applicant, being the registered proprietor of the suit property is by virtue of section 27 of the Registered Land Act vested with the absolute ownership thereof with all rights and privileges belonging or appurtenant thereto which cannot by virtue of section 28 of the Act be defeated except as is expressly provided by the Act. Further, counsel contended that the 1st  plaintiff/Respondent ought to have adduced evidence in support of what is deposed to in paragraph 3 of the Replying Affidavit aforesaid but the Respondents have failed to tender any documents whatsoever whether by way of an agreement for sale or an executed instrument of transfer of the suit property in favour of the  Respondents together with an application for or a letter of consent of the relevant Land Control Board or otherwise as evidence of the alleged sale of the suit property to the Respondents. Mr. Kinyanjui was also of the view that the Respondents ought to have sought to protect their alleged interest as purchasers by registering or causing to be registered against the title to the suit property either a Caution or an Inhibition or a Restriction pursuant to the provisions in that behalf contained in Part VIII of the said Act.

Mr. Mugo, learned counsel for the Respondents, argued in reply  that the application be dismissed as in addition to the matters averred to in the Replying Affidavit of the 1st  Respondent, the Applicant had not only failed to disclose that the Plaintiffs were  already in possession of the suit property and had made substantial improvements thereon but also that by failing to seek an order for a permanent injunction in the Amended Defence and Counterclaim dated and filed on the 4th October 2004, the Applicant is not entitled to the temporary injunction sought. Finally, Mr. Mugo submitted that the situation on the ground being extremely volatile as evidenced by the newspaper cuttings referred to in paragraph 5 of the Replying Affidavit, an injunction ought not to issue as this may well lead to violence. I have considered the arguments of both learned counsel in light of the material before me and with profound respect to counsel for the Respondents, I am not, in absence of any evidence to support the averments in tie Replying Affidavit, at all persuaded that the  Applicant should be denied the orders sought as in any event, any anomaly in the counterclaim is easily cured by an appropriate amendment thereto.

In the common law tradition, which is part of our heritage of legal culture, and under commonplace constitutional principles considered an essential element in political civilization, the sanctity of private property is a virtue - hence the constitutional and statutory guarantees of ownership and enjoyment by individuals of private property. In this context, which the Respondents have failed to challenge successfully, the Applicant states a simple fact: that he is the owner of the suit land and should be allowed to enjoy his rights as such without interference by the Respondents.

Being satisfied that, prima faced, the Applicant has well met the conditions for the granting of the orders sought, I allow the application and do hereby grant orders in terms of paragraphs 2 and 3 of the Chamber Summons application dated and filed on the 4th October 2004 with costs to the 1st defendant/applicant.

Dated and delivered at Nairobi this nineteenth day of November 2004.

P. Kihara Kariuki Ag. Judge