Martin Nyongesa, George Simiyu Wafula, Edward Musombi, John Bakari Makokha, Tom Samuel Nasongo, Charles Omondi Vitoyo, John Wekesa Kibulo, Eboso Kennedy, John Albert Sambula, Jentrix Nasipwondi Swala, Jeremiah Ithalie Muchiri, Ben Wanjala Matumbeti, Stanley Wangana Mwangi, John Wekesa Murutu, Lazaro Namianya Wanyonyi, Isaiah Wanyonyi, Erick Wabululu, Isack Kinyanjui, Jack Wafula, Judith Walumbe, Catherine Welikhe, Aggrey Alose Mukirima & Moses Mwanda v Eldoret Express Ltd [2016] KEHC 5004 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 48 OF 2016

1. MARTIN NYONGESA    ….........................1ST PLAINTIFF/APPLICANT

2. GEORGE SIMIYU WAFULA.......................2ND PLAINTIFF/APPLICANT

3. EDWARD MUSOMBI   …..........................2ND PLAINTIFF/APPLICANT

4. JOHN BAKARI MAKOKHA …..................3RD PLAINTIFF/APPLICANT

5. TOM SAMUEL NASONGO  …..................4TH PLAINTIFF/APPLICANT

6. CHARLES OMONDI VITOYO....................6TH PLAINTIFF/APPLICANT

7. JOHN WEKESA KIBULO …......................7TH PLAITNIFF/APPLICANT

8. EBOSO KENNEDY  …................................8TH PLAINTIFF/APPLICANT

9. JOHN ALBERT SAMBULA …..............… 9TH PLAINTIFF/APPLICANT

10. JENTRIX NASIPWONDI SWALA....... .10TH PLAINTIFF/APPLICANT

11. JEREMIAH ITHALIE MUCHIRI ….....…..11TH PLAINTIFF/APPLICANT

12. BEN WANJALA MATUMBETI …….......12TH PLAINTIFF/APPLCIANT

13. STANLEY WANGANA MWANGI .....….. 13TH PLAINTIFF/APPLICANT

14. JOHN WEKESA MURUTU …………..... 14TH PLAINTIFF/APPLICANT

15. LAZARO NAMIANYA WANYONYI …......15TH PLAINTIFF/APPLCIANT

16. ISAIAH WANYONYI …..............................16TH PLAINTIFF/APPLICANT

17. ERICK  WABULULU ….............................17TH PLAINTIFF/APPLICANT

18. ISACK KINYANJUI …................................18TH PLAINTIFF/APPLICANT

19. JACK WAFULA   …...................................19TH PLAINTIFF/APPLICANT

20. JUDITH WALUMBE …..............................20TH PLAINTIFF/APPLICANT

21. CATHERINE WELIKHE ….........................21ST PLAINTIFF/APPLICANT

22. AGGREY ALOSE MUKIRIMA .….....…….22ND PLAINTIFF/APPLICANT

23. MOSES MWANDA …................................23RD PLAINTIFF/APPLICANT

VERSUS

ELDORET EXPRESS LTD …………………................…………..DEFENDANT

R U L I N G

1. The Applicants are all members and or shareholders of Tawai Limited,  a Limited Liability Company incorporated  in the Republic of Kenya.   The Applicants filed a Notice of Motion dated 9/3/2016 in which they seek an injunction restraining  the Respondent (Company) from interfering with  occupation of their portions comprised in LR No. 5707/R.  The Respondent Company which was  duly served neither filed grounds of opposition nor replying affidavit.   The application therefore proceeded ex-parte.

2. The Applicant contends that Tawai Limited subdivided LR No 5707/R into 291 Plots which were then given to the Applicants and others.  That consent to subdivide was duly given  and the Applicants were shown their respective portions which they occupied. That the Company has threatened to evict them from their respective portions and has gone ahead to cut down mature trees growing on their farms. That the Company has been doing this each planting season and that unless, the  Company  is restrained , it will  evict them from their land.

3. The Applicants further contend that  the Company has enlisted the services of the Kenya Police Reserves who are going  round their farms destroying their properties and threatening to  evict them. That the situation on the round is volatile and unless the orders are granted, there is a likehood of chaos breaking out.

4. I have considered the Applicant's application as well as the annextures thereto.   This being an application for injunction, the Applicants are expected to demonstrate that they have a prima facie case with probability of success.   An injunction will not normally be given unless otherwise the Applicant will suffer loss which will not be compensable in damages. Where the court is in doubt , it will decide the application on a balance of convenience.

5. In the instant case, the Applicants have not disclosed that what is described as LR No 5707/R is already registered in the name of the Respondent Company the same having been sold to it by Kaitet Tea Estates Limited. They have also not disclosed  that Tawai Limited where they are members or shareholders is currently in court over the ownership of the same property. This case was registered in Kitale as HCCC No. 18 of 2008 betweenEldoret Express Limited -Vs- Tawai Limited.  This case has since been transferred to Eldoret Environment and Land Court.

6. It is not possible that subdivision of a property which is registered in the name of the Respondent would have been carried out  in 2102 unless the approval for sub division was given without material disclosure. The Applicants have deliberately omitted part of the title which shows the  ownership of the land in dispute. An injunction is an equitable remedy and whoever comes before the court  has to come with clean hands.

7. Tawai Limited is fighting over the same land and at the same time its members are fighting on their own in separate suits.  What is happening in  the present case amounts to an  abuse of the process of the court .  Besides this, shareholders of a company or its members cannot bring a suit on behalf of the Company. The company has  a separate and distinct entity from its members and shareholders and the Company's property belongs to the Company and not the  shareholders or members.   What members own are shares.  Members cannot bring a suit on behalf of a Company to litigate on wrongs committed against a Company.   It is for this reason that I find that the Applicants have  not demonstrated that they have a prima facie case with probability of success.   The property is not theirs. As I have indicated herein above, the disputed property  is  currently in the name of the Respondent and Tawai Limited is trying to have it back.  Until the dispute before the Eldoret court is heard and determined, there is no way the Applicants herein can again purport to be litigating on the same property.

8. If Tawai Limited finally wins the case and the property reverts to it and the same is shared among the shareholders, any loss which the Company or its shareholders would have suffered is capable of being quantified and claimed from the Respondent. I therefore find that the Applicants will not suffer loss which will not be compensated in damages.

9. I have no doubt in my mind as to call for determination of this application on a balance of convenience.  I find that the Applicant's application lacks merit. The same is hereby dismissed with no order as to costs.

It is so ordered.

Dated, signed and delivered at Kitale on this 5th day of May 2016.

E. OBAGA

JUDGE

In the presence of Mr Pukah for Plaintiffs/Applicants

Court Assistant – Isabellah

E. OBAGA

JUDGE

5/5/16