Maralal Village Polytechnic (Suing through its chairman, secretary and treasurer namely Jeremiah Muhia, Jesse Mwangi and George Maina respectively) v County Government of Samburu & Musa Abdile [2014] KEELC 7 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

ELC CASE NO. 601 OF 2013

MARALAL VILLAGE POLYTECHNIC (Suing through its chairman,

secretaryand treasurer namely Jeremiah Muhia, Jesse

Mwangi and George Maina respectively)..............PLAINTIFF/ APPLICANT

VERSUS

COUNTY GOVERNMENT OF SAMBURU....1ST DEFENDANT /RESPONDENT

MUSA ABDILE..............................................2ND DEFENDANT /RESPONDENT

RULING

1.  The Plaintiff/ Applicant filed a Notice of Motion under Order 40 Rules 1, 2 and 4, Order 51 Rule 1 of the Civil Procedure Rules, Section 13(7) (a) of the Environment and Land Court Act No. 19 of 2011, Sections 68 and 69 of the LandRegistration Act No. 3 of 2012 and all enabling provisions of the Law dated 20th November, 2013 seeking the following orders interalia:-

a)  That pending the hearing and determination of this suit, an order of injunction do issue against the respondents restraining them by themselves  or their  servants,   agents, employees  or  anybody claiming  either  in  or under their  names  from  in  any  manner whatsoever entering, depositing materials, demolishing structures, staying or  in  any other manner interfering   with   the   plaintiff unsurveyed   plot  No 181  Maralal  Township ("suit property")

b)  That pending the hearing and determination of this suit, an order of inhibition be made and issued to inhibit any and all dealings related to the suit property

c)  Those costs of the application be provided for.

2. The  application is premised on  the  grounds set out therein and is supported by an affidavit sworn by Jeremiah Muhia Letiwa, the chairman of the Maralal village Polytechnic ("Polytechnic") as well as chairman of the P.C.E.A Maralal town church. He  depones  that  the plot was verbally allocated to the church by the Samburu County Council in1974; that in1979 the  Polytechnic as a subsidiary of  the church  was allocated the  suit  property vide  a letter of allotment  No 30581/11/7 dated 15th August,   1979  and  thereafter  the church  proceeded  to operate the  Polytechnic as its subsidiary.

3. In 2003,  due to lack of  students,  the Polytechnic was converted  into an Academy until 2008when some Government officials in  cahoots with  purported private developers, started  laying claim on  the  suit property; that as a result  they approached the   District  Commissioner Samburu District and the defunct Town  Council of Maralal who   requested  for a report  from the District  Physical planning  office.  In his response, the District Physical planning officer confirmed that the church was the owner of   the suit property and that there was encroachment therein (JKC4).

4. The applicant contends that despite being diligent in paying rates for the suit property to date, this did not stop the 1st respondent from writing to  them on 17th March,2009  demanding that they move out of  the suit  property neither did  it stop the  2nd respondent inSeptember, 2013 from entering into a portion of the suit  property claiming that he had been allocated the same by  the defunct town council of Maralal, nor  the respondents on18th November, 2013 through their agents from entering the  suit property and demolishing structures  and  thereafter depositing building materials therein.

5. The  application was opposed by the 1st respondent vide a replying affidavit dated  7th February, 2014 sworn byStephen Siringa Letinina, the County Secretary of the 1st respondent. It was his contention that the said Jeremiah Muhia Letiwa is not the Chairman of the Polytechnic, nor is the Polytechnic a subsidiary of the P.C.E.A Church.

6. He  alluded to  the  fact   that the Commissioner  of  Lands did  allot an un surveyed plot to the Polytechnic (SSL 11) but the allotment was not  pursuant to  any application by the P.C.E.A  church or on behalf of P.C.E.A church) therefore the  Polytechnic was not a subsidiary of  the Presbyterian foundation;  that plot  No. 181 rightfully belonged to P.C.E.A church (SSL 111) but the Polytechnic had a different plot number from   the church as confirmed by the District Physical Planning officer (SSL V (a) and (b))

7.  He  further deponed that the plaintiffs who are carrying themselves out as officials of the  Polytechnic could  not  be representing the Polytechnic because  the  same was a Government Institution  run and  managed by  the Government  and  was  never  built or managed by the P.C.E.A Church;  that all quarterly  reports, tuition programmes, staff salaries, and expenditure were all approved and catered for  by  the Government (SSL  XL).  It was  also a requirement that the polytechnic should have  a duly constituted  Board of Governors to which the persons bringing this suit were not members: that members of the board of Governors of Mararal Village  Polytechnic were Government officials as clearly set   out in  SSL  VI,  VII  and VIII.

8. The Polytechnic being a public institution, had  many sponsors including the P.C.E.A Church (SSL  Xll)but none of  the other sponsors  had come to lay  claim on  its land and  buildings; that in  2009  different officials of  the P.C.E.A church had filed  an application for judicial review (No  46 of  2009) making similar claims, but the  same  was dismissed by  the  High  Court (SSL  XIV); that it  is  after the dismissal of  that suit, that the board of  Governors of the Polytechnic approached the County Government to help renovate it so as to admit students  in 2014; that the County Government accepted and have stepped in to renovate the Polytechnic which renovations have led  to  the current suit.

9. The 2nd respondent also opposed the application vide a replying affidavit sworn on 10th February, 2014 in which he denied encroaching onto the suit property. He  deponed that he  was allocated  Plot No  2by   the  Town Council  of Maralal in  2008  which plot was behind  the  polytechnic; that he  had made all  the requisite payments for  the plot including rates and had developed it.

10. The  applicant filed  a supplementary affidavit sworn on  4th April, 2014  by  the  same  Jeremiah  Muhia.  In  a rejoinder,  he   denied  that  the  Polytechnic was run  by   a Board  of Governors  as  alleged  by  the  1st  respondent appointed by  the Minister of Education but rather deponed that  the Polytechnic was run by  a committee of  which he was the duly elected chairman; that the land on  which the Polytechnic was built belonged to  the Government and not the 1st  respondent; that  the exhibits by  the 1st respondent were irrelevant and had no  bearing on  this matter and that the   Polytechnic was not bound by  Government circulars and   directives  as  it was  not  a  Government  owned institution.

11. On 13th February, 2014 parties agreed to dispose of the application by way of written submissions. Both parties filed their   written submissions on 8th April, 2014 reiterating what was contained in their affidavits which I have taken into consideration.

12. The issue that stands out for determination is whether on the facts and circumstances of this case, the applicant is entitled to the orders of injunction sought at this interlocutory stage.

13. The principles upon which the court will grant an injunction are well settled and articulated in the decision of Giella vs  Cassman Brown & Co. Ltd (1973) EA 358. The plaintiff needs  to show that  they have a  prima facie case with probability  of success;  that  they  stands  to suffer irreparable damage that  cannot  be compensated  by an award in  damages and  if  the court  is in doubt, it will determine  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 facie case.

14.  A prima facie case as described in the decision of Mrao vs First American Bank of Kenya Limited & 2 Others (2003) KLR 125

"... includes but  is not confined to a 'genuine and arguable case'.  It  is a case which, on the  material presented to   the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by  the opposite  party as to call  for an explanation or rebuttal from the latter."

15. In the instant case, the plaintiff has tried to convince this court that the Polytechnic is part and parcel of the P.C.E.A. church.  They have exhibited a letter dated 15th February 1974 (JMLl) addressed to Rev.D. Nduatiinviting him to attend a meeting, Ref; P.C.E.A Church Village Polytechnic Official Meeting. What is interesting about this letter is that it is written on   the letter head of the Ministry of Co-operatives and Social services. It is authored by a Government officer who was acting as the secretary of the Polytechnic at that time. It can therefore be inferred that even as way back as 1974, the Government was involved in the affairs of the Polytechnic contrary to what the plaintiff's wishes this court to believe.

16. The letter of allotment dated 15th August, 1979 was issued to Maralal Village Polytechnic for a term of 99 years. The plot number is described as un surveyed plot Maralal. In  my view,  the plaintiffs have failed to  establish a nexus between the P.C.E.A Church un surveyed  plot No. 181 andt he Polytechnic's un surveyed plot Maralal. Further they have failed to establish an ownership relationship between the church and the Polytechnic.

17. As regards the 2nd defendant, the plaintiffs have failed to demonstrate how the 2nd defendant has encroached onto the P.C.E.A Church plot No. 181 and/ or the Polytechnic's plot.  The  2nd defendant has exhibited a  letter  from the Town Council  Maralal dated  27th  March, 2008  allocating him plot  No. 2 (behind Maralal Polytechnic). It is clear from the letter that this plot   is not the same as plot No. 181 belonging to the Church.

18. On it part, the 1st respondent has demonstrated that the Polytechnic is a Government institution (SSL VI, VII and VIII). It has exhibited minutes of various meetings that have taken place in relation to the Polytechnic. In one such meeting held at the District Commissioner's boardroom on 16th March, 2009; MIN 3I 1/09 subheading; Establishment of youth Polytechnic, it is recorded in part as follows;

“The secretary told members that PCEA Academy was occupying land belonging to youth Polytechnic which was   under the Ministry of   Youth.  He told them about a Quality Assurance and standards officers report carried out by the officers from his office. The report stated that this Academy had occupied land belonging to the Polytechnic and therefore, would not be registered unless the issue of the land ownership is sorted out. "

The  P.C.E.A leaders  had  accepted  that  the  land belonged  to  the  Ministry of   Youth  and   they  were ready to move.............."

At   another   meeting  held  on 9th June,  2011  by   the Nomination panel of Maralal Youth Polytechnic  Board  of Governors, at the District Youth office  Samburu Central, Under  MIN   2/6/11   Subheading; Briefing On Youth Polytechnic BOG Nomination Process,  it  is  stated in part;

"  Mr Fredrick Kiragu pointed  out that  Maralal Youth polytechnic  could  be  operational   two years ago  had  the court process of  determining title  ownership of  the youth Polytechnic land and  buildings been speeded  up.   He  said that despite title documents showing that the land and building belong to the Maralal Youth polytechnic,   the P.C.E.A church leaders had frustrated the establishment of the    Youth Polytechnic by going to court to obtain court order stopping their eviction".

The  following were  in  attendance;   the   District  officer, Samburu  Central, District Training officer Samburu  Zone, Area Education  Officer- Samburu  Central,  area  Councilor and  representative  of   Member   of   Parliament  Samburu Central/ CDF.

19. In yet another letter dated 24th April,  2009 (EX  SSL IV),  addressed  to the  Pastor  P.C.E.A church,  the  town clerk Dorcas Lekesanyal  in  reference to  payments for  land rates on   plot No. 181 registered under  P.C.E.A Church via receipt No.  B49724 dated 8thOctober, 2007stated,” The council wishes   to   clarify to you that  the above payments made to our   office via   receipt No.   B49724 dated 8th October 2007, were in respect of plot number 181 registered under the name   P.C.E.A church according to Council's part development plan.

The Council further wishes to inform you that plot number 181 belongs to P.C.E.A. church while Zone NO. 22 belongs to Maralal Youth Polytechnic.

The above two plots have no material connection. 181 is registered under the church name, while zone 22 is a public utility."

20.  The District  Physical planning  officer in  a letter dated 7th July, 2008(Ex  SSL  V(a)),   reversing a position he  had earlier taken in  a letter dated 12th  June, 2008 (EX  SSL  V (b)  in part wrote ".....Refer to my letter  Ref. PPD/SAM/308/Vol.7 /48   dated   12th June,  2008.   I stated that part of   the PCEA church plot has been reallocated.  After going through  the  records,  it  has come to my attention that the PDP in question apply to the  village polytechnic land which is actually  not  an extension of  the church plot. Thus the church plot has not been encroached or reallocated as earlier stated."

21. With the facts and evidence placed before me, I am   of the  view   that a  prima  facie case  with a  probability  of success has not been established. From the numerous exhibits by  both the 1st and 2nd  respondents, it is clear that none of the respondents   have  entered, deposited, demolished  structures or are  in any   other manner interfering  with un surveyed plot  No 181 Maralal Township belonging  to  the P.CE.A church.  The officials of the church at this interlocutory stage have failed to establish how the Polytechnic is its subsidiary and how Jeremiah Muhia Letiwa, Jesse Mwangi, and George Maina are officials of the Polytechnic. They have not exhibited any certificate of registration for the Polytechnic and neither have they exhibited any document recognizing them as the registered office bearers of the same.

24. For the above reasons, I find no merit in the Notice of Motion dated20th November, 2013 and dismis it with costs to the respondents.

Dated, signed and delivered at Nakuru this 3rd day of October 2014.

L N WAITHAKA

JUDGE

PRESENT

N /A for the applicants

Mr Mugambi for the respondents

Emmanuel Maelo: Court  Assistant

L N WAITHAKA

JUDGE