Mary Wanjiku Gitagia v Lucy Mwihaki Wa Ngugi, Gabriel K Kinuthia & Muturi [2016] KEELC 300 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND  COURT OF KENYA

AT   NAKURU

ELC NO 292 OF  2015

MARY   WANJIKU  GITAGIA............................PLAINTIFF

VERSUS

LUCY  MWIHAKI WA NGUGI..............1ST  DEFENDANT

GABRIEL  K   KINUTHIA.....................2ND  DEFENDANT

MUTURI................................................3RD  DEFENDANT

RULING

(Application for injunction; plaintiff claiming that she owns a certain plot and the defendants have encroached on it and built a permanent building; no proof of ownership displayed; beacon certificate annexed shows different proprietor; no proof of encroachment; no explanation as to what permanent building is developed; no prima facie case established; application dismissed)

1. This suit was commenced by way of plaint filed on 15 October 2015. In the plaint, the plaintiff has pleaded that she is the absolute registered proprietor of the parcel of land known as Silanga Sector III Plot No. 388 measuring approximately 30 X 60 (units not specified). She has pleaded that the defendant (not specified who among the three defendants) bought the Plot No. 389/387 and the defendant (again not specified which defendant) took possession of the plaintiff’s 10 X 60 feet plot illegally and ordered the 3rd defendant to encroach  into 10 feet and construct a permanent building illegally and in the process denied the plaintiff ownership of the said plot. It is pleaded that at no single time has the plaintiff sold, given, donated and/or subdivided her plot. In the suit, the plaintiff has sought the following orders which I have had to paraphrase as they are in extremely poor english :-

(i) A declaration that the plaintiff is the owner of the plot known as Silanga Section III No 388.

(ii) An eviction order do issue against the defendant (not specified which) by himself, his servants and/or agents from using 10 X 60 feet of the plaintiff’s land.

(iii) A permanent injunction to restrain the defendant (not specified which) from interfering with the plaintiff’s quiet enjoyment of the plaintiff’s said plot.

(iv) Costs of the suit.

2. Together with the plaint, the plaintiff filed an application for injunction which is the subject of this ruling. She wants the defendants stopped from dealing, developing, or encroaching into the plot No. 388 Silanga Section III (the suit land). In her supporting affidavit, the plaintiff has averred that she has annexed as proof of ownership copies of beacon certificates dated 29 May 2011. However no documents were annexed to her affidavit. She has averred that she was allocated the suit land as stake holder of Silanga Mwengenye Resettlement Scheme. She has further deposed that the 1st defendant encroached into her plot and constructed a permanent building without her consent. She tried to stop him in vain. She has also deposed that she has reported the matter to the Chief at Njiru Division more than 10 times but the defendants defy the Chief’s order. She has averred that the defendants have denied her use of 10 X 60 feet of her plot.

3. Despite being served, the defendants have not entered appearance and neither have they filed any document to oppose this application.

4. I have considered the application. It is an application for injunction and I stand guided by the principles in Giella vs Cassman Brown (1973) EA 358. In the said case, it was held that to succeed in an application for injunction, one needs to demonstrate a prima facie case with a probability of success; show that he stands to suffer loss that cannot be compensated by an award of damages if the injunction is not granted; and if in doubt the court will determine the application on a balance of convenience.

5. To determine whether one has made out a prima facie case, it is inevitable that the court makes a preliminary assessment of the plaintiff’s case based on the material tendered.

6. In this case the plaintiff has averred that she is the registered proprietor of the suit land and that one or all of the defendants have encroached into a portion of her land and developed a permanent building. As I mentioned earlier, no document was annexed to the supporting affidavit. I am however ready to cut the plaintiff some slack as she is acting in person and I will look at the documents annexed to her list of documents. There is annexed a beacon certificate and I assume that it is the same beacon certificate that she intended to attach to her affidavit. The same shows the name Gitagia Wanyoike and not the plaintiff’s name. It has not been suggested to me that the plaintiff is also known as Gitagia Wanyoike and I cannot assume that the plaintiff is the same person as Gitagia Wanyoike named in the Beacon Certificate. In any event, a beacon certificate by itself without any other supporting document, is a very weak document to use as proof of ownership of land.

7. Apart from this, I have actually not been shown any proof of encroachment even through simple photographs. What is annexed are letters from the Chief showing that the plaintiff has complained about the activities of certain persons whom I assume to be the defendants.

8. But even assuming that the plaintiff had demonstrated ownership and encroachment, which she has not, she still would not succeed in this application. By her own deposition, she has averred that the defendants have built a permanent building on what is claimed. I do not know what kind of permanent building is therein for it has not been described to me. I do not therefore know what is there and how it is used. It would be unwise, in the absence of all this important material, to make an order of injunction.

9. The long and short of the above is that I am not persuaded that the plaintiff has made out a prima facie case with a probability of success. I have little option but to dismiss this application. Since the defendants did not oppose it, I make no orders as to costs.

10. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 17th day of March, 2016.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence  of  : -

Plaintiff/applicant acting  in person

Defendants: absent

Court  Assistant  :  absent

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU