Joseph Musyoki Mwania v Musyoki Nzivu [2021] KEELC 4552 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

ELC SUIT NO. 18 OF 2020

JOSEPH MUSYOKI MWANIA...............PLAINTIFF/APPLICANT

VERSUS

MUSYOKI NZIVU.............................DEFENDANT/RESPONDENT

RULING

1. What  is before this  court for ruling is  the Plaintiff’s/Applicant’s notice of motion  application dated  16th July, 2020 and filed in court  on 17th July, 2020 for orders: -

1) Spent

2) Spent

3) That  a temporary injunction  do issue  against the Defendant and his cohorts and his agents employees and/or servants  or any other person acting  at his behest from trespassing into, invading and/or in any other manner from interfering with the Plaintiff’s  lawful ownership, passion, use  and occupation of his 3. 29 acres of all  that property known  Nzaui/Nziu/41 sold  to him by one Monica Nzula Mwaiwa (Mrs. Mwanthi Nzivu) on 30th September, 2017 pending  hearing and determination of this suit.

4) That the Officer Commanding Station, Makueni Police Station do assist in the execution of the orders issued pursuant to this application.

5) That costs of this application be in the cause.

2. The application is predicated on the grounds on its face and is supported by the affidavit of Joseph Musyoka Mwanza, the Plaintiff/Applicant herein, sworn at Nairobi on 16th July, 2020.

3. The application is expressed to be brought under Order 40 Rule 1,2 and 4 of the Civil Procedure  Rules, Section 3A  of the Civil Procedure Act Chapter 21 of the Laws of Kenya and all other enabling  provisions of the law.

4. The  application  is opposed  by the Defendant/Respondent vide his grounds of opposition dated 18th October 2020 and filed  in court on  26th October, 2020 where he states:-

1) That the application and the cause demonstrate no urgency than that demonstrated by other land causes unless the Plaintiff/Applicant wishes   for a special treatment.

2)  That the Plaintiff/Applicant has not approached this honourable court with clean hands as he has not concealed material and relevant information relating to the actual situation on the ground and therefore this should disentitle him to the equitable remedy of injunction.

3) That the threshold  established  in the Giella Vs Cassman Brown Ltd 1973 E.A 358  has not been met and this application is unmeritorious  and an abuse of the court process.

4) That an injunction orders cannot be issued to restrain from happenings that which has already happened as the Defendant/Respondent has been in occupation in the suit land since 2012.

5) That the Defendant/Respondent herein has been in occupation and possession of the suit parcel of land since 2012 and cannot be injucted in the interim; an interlocutory injunction cannot be issued restraining entry if the Defendant/Respondent has been in occupation in which case the Defendant/Respondent has been in occupation.  This principle of the law was set out by Justice Makhandia  in Nganda Kalandi Vs Timothy Mutinda Nzioka CMC No. 82 of 2009.

6) That Defendant/Respondent purchased the suit property from his brother one Stanlaus Mwanthi Nzivu(lawful owner) in January, 2012 and  he has been lawful and legitimate owner seized  and /or possessing absolute rights to use, abuse and/or dispose of the same without intervention of the Plaintiff/Applicant.

7) That   later the Plaintiff/Applicant purchased the same parcel of land being Nzaui/Nziu/41 from the wife of Stanslaus Mwanthi Nzivu(Lawful owner) one Monicah Nzula Mwaiwa in full disregard of Section 55 and 71 of the Law of Succession as no letter of administration had been issued to her and therefore the Plaintiff/Applicant is not entitled to be heard.

8) The purported purchase by the Plaintiff/Applicant is a nullity at the first instance as the estate of the deceased could firstly have been dealt with under the law of succession after his death and not otherwise. The purported seller was neither the registered owner nor a beneficiary the estate of the deceased, had no interest on the land to pass and therefore   this whole transaction amounted to intermeddling of the estate of the deceased Stanslaus Mwanthi Nzivu(lawful owner.)

5. Directions to canvass the application by way of written submission were issued on 20th July, 2020 and by the time of writing this ruling; it is only the Plaintiff/Applicant who had filed his. On the 9th  November, 2020, the Defendant’s/Respondent’s counsel  who was present  in court  was directed  to serve  the Plaintiff/Applicant   who was  absent with a ruling  notice  after the application was fixed for ruling on 20th January, 2021.

6. As was correctly submitted by the counsel for the Plaintiff/Applicant, the principles for the grant of an interlocutory injunction  are enunciated   in the case of Giella Vs Cassman Brwon & Co ltd (1973) EA 358.  I need not  repeat those principles  herein save to say that the counsel submitted that  the Plaintiff/Applicant  has satisfied this court that he has a prima facie case with probability   of success, has shown   that he will suffer irreparable damage  if the order sought   is granted  and that the balance of convenience  tilts  in favour of the Plaintiff/Applicant. The counsel further relied  on the Ugandan Case  of Osuna Otwani  V Abdul Ziwa  Kampala High  Civil Suit  No. 246 of 1994[1994]  III KALR 28 where  the court stated thus;

“The purpose of   the purpose of a temporary injunction is to preserve matter in status quo until the question to be investigated in the main suit. As to whether the Applicant has a prima facie case with probability of success, the Applicant pleaded in his plaint that the trailer belonged to him and produced a sale agreement between him and Samuel Muwonge although the registration book still shows Samuel Muwonge as the owner ….. the court from facts and evidence can believe the  Applicant and it is held that the Applicant  has a prima facie case with high probability  of success in the main suit.”

7. The counsel  also cited the case of Ugantico Supermarket V Registrar of Titles  & others Kampala High Court Civil Suit  No. 256 of 1993 [1994] V KALR where  the court  stated thus;-

“On the issue of balance of inconvenience the  Applicant who has already carried developments on the land, would  be more inconvenienced if the structure were demolished. … it is more reasonable to halt activities by both sides at this stage.”

8. I have read the application and the grounds of opposition.  I do note that  whereas  the  Plaintiff/Applicant has  deposed that he purchased  all that  parcel of land known as Nzaui/Nziu/41 from one Monicah Nzula Mwaiwa (Mrs. Muathi Nzivu) on 30th  September, 2017 and subsequently took possession of the suit land, he is silent on the contention by the Defendant/Respondent  that he has  been in  occupation  and possession  of the suit land since 2012 and injunction orders cannot be issued to restrain  from happening what has already happened.  I further note that the Plaintiff/Applicant is silent on when the act complained of took place.  He is also silent on the issue of having bought the suit property from a person who had no letters of administration thus making the transaction to amount to intermeddling with the property of a deceased person.   Given those circumstances, it is my considered view that the most appropriate orders to issue is one of status quo as at the time of filing this suit.

Consequently, I hereby proceed to grant the order of status quo.  Costs will be in the cause.

Signed, dated and delivered via email at Makueni this 29th day of January, 2021.

MBOGO C.G.,

JUDGE.

Mr.  Kwemboi Court Assistant