Kwenja Berau Kinu v Bebman Kalongo Dena, Robert Rau Kalongo (Wrongly Sued as George Rau Kalongo & Victor Dena Kalongo [2018] KEELC 1430 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CASE NO. 244 OF 2017

KWENJA BERAU KINU ........................................................ PLAINTIFF

VERSUS

BEBMAN KALONGO DENA...................................... 1ST DEFENDANT

ROBERT RAU KALONGO (Wrongly sued as

GEORGE RAU KALONGO ....................................... 2ND DEFENDANT

VICTOR DENA KALONGO ..................................... 3RD DEFENDANT

RULING

1. By a Notice of Motion Application dated 12th October 2017, Kweja Berau Kinu(the Plaintiff) prays:-

c) That an order of injunction be issued restraining the Defendants, either by themselves, agents and/or any other person howsoever claiming through them from further evicting, threatening to erect, developing, leasing, advertising for leasing, trespassing and/or in any way whatsoever interfering with the Plaintiff’s ownership of LR No. Buni/Kisimani/561(the suit property) pending the hearing and determination of this suit;

d) That an order of demolition be issued to demolish all the offending structures currently erected by the Defendants on the suit property;

e) That the OCPD Rabai Police Station do provide security during the said demolition for the sole purpose of maintaining law and order; and

f) That (the) costs of this Application be provided for.

2. The application is supported by the Plaintiff’s affidavit and is premised on the grounds that:-

i) The Plaintiff is the registered and/or beneficial proprietor of the suit property;

ii) The Defendants have unlawfully and illegally invaded the suit property and commenced construction thereon without any colour or right;

iii) The Plaintiff is apprehensive that he stands to loose the property and his right to own property unless the Defendants are stopped; and

iv) In the circumstances, it is in the best interest of justice that the orders sought are granted.

3. In response to the said application, the Defendants have on 21st February 2018 filed Grounds of Opposition thereto stating as follows:

1. That the application is belated, ill-conceived, misinformed and tainted with mala fides for the reasons that:-

i) It seeks orders that are untenable in the circumstances of this case;

ii) It is vexations and does not meet the threshold requirements for the grant of the orders sought;

iii) It is bad in law and an abuse of the Court process in light of the Rules of Practice and Procedure;

iv) It bears ground not supported by any facts as deponed to in the Supporting Affidavit;

v) It is fatally defective.

2. That the Application is therefore grossly incompetent, frivolous, vexatious, wholly unmerited and ought to be struck outab initiofor being an abuse of the Court process.

3. That it is therefore only in the interest of justice that the Plaintiff’s said Application be dismissed with costs to the Defendants.

4. The principles on which the Courts will grant an injunction are now well known. The Court of Appeal restated those principles in Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others, C.A. No. 77 of 2012 as follows:-

“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;

a) Establish his case only at a prima facie level;

b) Demonstrate irreparable injury if a temporary injunction is not granted, and

c) Alley any doubts as to (b) by showing that the balance of convenience is in his favour.

5. In Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others(2003) KLR 125, a prima facie case was defined in the following words:-

“In civil cases a prima facie case is a case in which on the material presented to Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”

6. Considering the facts of the case in light of the principle in the Mrao Case (Supra), it is evident that the Plaintiff herein is the registered proprietor of all that property comprised in Title No. Buni/Kisimani/561. He accuses the respondents of invading the said parcel of land and commencing construction thereon.

7. The Defendants/Respondents have not controverted the Plaintiff’s assertions. Instead, they have come up with generalized and generic Grounds of Opposition claiming the Plaintiff’s application is ill-conceived, grossly incompetent, fatally defective et al. Nothing in the said, Grounds of Opposition filed herein on 1st February 2018 addresses the specific accusations made against them by the Plaintiff.

8. In particular, the Defendants do not deny that they have commenced construction on a parcel of land that belongs to the Plaintiff. I am satisfied that if that construction and any other infringements by the Defendants are not stopped, the character of the suit property may change drastically to the detriment of the Plaintiff/Applicant.

9. In the circumstances and contrary to the Defendant’s denials, I am satisfied that the Application dated 12th October 2017 has merit. The same is allowed with costs to the Plaintiff.

Dated, signed and delivered at Malindi this 11th  day of October, 2018.

J.O. OLOLA

JUDGE