Joseph Ndolo Muendo v Wanjiku Kinyoro & Umagara Wiyonere Co. Ltd [2016] KEELC 18 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

MILIMANI LAW COURTS

ELC NO. 234 OF 2015

JOSEPH NDOLO MUENDO.......................................PLAINTIFF/APPLICANT

=VERSUS=

WANJIKU KINYORO.................................. 1ST DEFENDANT/RESPONDENT

UMAGARA WIYONERE CO. LTD..............2ND DEFENDANT/RESPONDENT

RULING

The Plaintiff in his application dated 18th March 2015, seeks an order that the Defendants be restrained from wasting, destroying, alienating, selling, altering, transferring, or interfering with Plot No. 1131 in LR 8469/9, pending the hearing and determination of the suit. The application is premised on grounds outlined thereunder and supported by an affidavit sworn by the Plaintiff.

The Plaintiff’s case is that he is the lawful owner of Plot No. 1131 in LR 8469/9 ,having acquired it through purchase from one Thomas Mongare Ombonyovide a sale agreement dated 12th July 1999. Upon payment of the requisite registration, transfer and purchase fees, he was issued with a Certificate of Ownership for the said plot on 20th February 1999. It was his deposition that between 3rdand 8th March 2015, the Defendants entered into his plot, demolished and destroyed everything thereon and commenced the construction of a wall around the plot. The Plaintiff urged the court to grant the orders of injunction pending the determination of the case to avert any further loss and damage on the suit plot.

Thomas Mongare Obonyo, swore an affidavit on 15th May 2015, in support of the Plaintiff’s case wherein he deposed that he was the original allottee of Plot No. 1131 ,from the 2nd Defendant. He completed payment of the purchase price and other requisite fees on 17th February 1999, and was issued with a Plot Certificate. It was his deposition that he remained in actual possession thereof until July 1999, when he sold it to the Plaintiff. Upon receipt of the purchase price, the 2nd Defendant issued the Plaintiff a new Plot Certificate.

The 1st Defendant swore a Replying Affidavit in opposition to the application wherein she deposed that she has the authority to act on behalf of her sister, Sophia Wanjiru Mukuria, by virtue of a general power of attorney executed on 31st July 2001. It was her disposition that her sister purchased Plot No. 54 within LR 8469/4 ,Kasarani from one Esther Nyokabi Kimani on 3rd January 1991. Upon payment of the requite fees, they were issued with a Plot Certificate on 10th January 1991, where after they took possession thereof. The 1st Defendant denied the allegation of trespass and urged the court to dismiss the orders sought against her.

The contents of the affidavits were reiterated in the submissions filed by both the Plaintiff and 1st Defendant, which the Court has carefully read and evaluated the affidavit evidence. The question to be determined is whether the Plaintiff has met the threshold for the grant of temporary order of injunction as enunciated in the case of Giella v Cassman Brown & Co. Ltd (1973) EA 358. These principles are;-

a) The applicant must establish that he has a prima facie case with probability of success.

b) That the applicant will suffer irreparable loss which cannot be adequately compensated in any way or by an award of damages.

c) When the court is in doubt, to decide the case on a balance of convenience.

From the narrative outlined hereinabove, it is common that the Plaintiff and 1st Defendants are second owners of plots sub-divisions of LR 8469/9 belonging to the 2nd Defendant, having acquired them through purchase from original allottees. The Plaintiff exhibited a sale agreement from the original allotee and a copy of Plot Certificate for Plot No. 1131 issued to him by the 2nd Defendant. Similarly, the 1st Defendant availed a copy of the sale agreement and Plot Certificate for Plot No. 54 issued in favour of her sister. The Plaintiff alleges that the 1st Defendant has encroached onto his property thereby occasioning loss and damage. The 1st Defendant denies the allegation maintaining that they are in occupation of their plot (No. 54) and do not even lay claim to the Plaintiff’s Plot No. 1131.

Evidently, there is a dispute as to the whether Plot No. 54 and No. 1131 are in fact on the same physical location or whether they are one and the same but for which separate certificates of ownership have been issued to different parties. It is noteworthy that the original owner of LR 8469/9, though a party to this suit did not file a response to this application. Representations made by the 2nd Defendant could have shade light on the dispute at to the physical location of the parties. All is not lost however as such evidence can be adduced at the hearing. In any event, it is trite that where there are contested issues of fact it is best that the matter be determined after examination of evidence at trial. In the meantime, however, justice will be served if both properties are preserved pending the disposal of the suit.

On the foregoing, I hereby enter an order of status quo to the effect that the Plaintiff and the 1st Defendant shall not dispose, carry out developments, or in any way alienate Plots No. 1131 and No. 54, respectively pending the hearing and determination of the suit or until further orders of the court.

For the above reasons the court declines to allow the Notice of Motion dated 18th March 2015, but enters status quo order as above stated.

Costs of the application shall be in the cause.

It is so ordered.

Dated, Signed and Delivered this 2nd  day of  December 2016

L. GACHERU

JUDGE

In the Presence of:-

None attendance for the Plaintiff              }

None attendance for the 1st Defendant   } though notified

None attendance for the 2nd Defendant  }

Vincent : Court Clerk

Court:

Ruling read in open Court in the absence of the respective advocates though notified.

L. GACHERU

JUDGE