Mathew Musyimi Nzube, Raymond Ndivo Kyeva, Philomena Mukini Mwololo v Joseph Mwanthi Nyeze, Lucas Kala, Ezekiel Mwaka Musau, Eunice Koki Musau, Ministry of Land, Housing & Urban DVMT & District Land Registrar Makueni [2018] KEELC 4607 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

ELC  346  OF  2017

MATHEW MUSYIMI NZUBE..............................................................1ST PLAINTIFF

RAYMOND NDIVO  KYEVA...............................................................2ND PLAINTIFF

PHILOMENA MUKINI MWOLOLO.................................................3RD PLAINTIFF

VERSUS

JOSEPH MWANTHI NYEZE...........................................................1ST DEFENDANT

LUCAS KALA....................................................................................2ND DEFENDANT

EZEKIEL MWAKA  MUSAU.........................................................3RD  DEFENDANT

EUNICE KOKI MUSAU...................................................................4TH DEFENDANT

MINISTRY OF LAND, HOUSING & URBAN DVMT.................5TH DEFENDANT

DISTRICT LAND  REGISTRAR MAKUENI...............................6TH DEFENDANT

RULING

1. By  their notice of motion application expressed to be brought under order  40 Rules 1 and  2, order 51 Rule 1  of the  Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act (cap  21) laws of Kenya, section 13(7) (a) of the Environment  and Land  Court  Act (Cap 12A) Laws of Kenya, Land  Adjudication Act (cap 284) laws of Kenya and all enabling provisions of the  law, the applicants pray for orders;

1. Spent

2. Spent

3. Spent

4. An order of temporary injunction be issued against the 5th defendant, his servants and/or agents restraining them from printing Title Deeds in respect of P/Nos. 1415, 1295, 1292, 1283 & 3972  Kisekini Adjudication Section pending hearing  and determination of the main suit.

5. Costs of this application be provided for.

The  application which is dated 5th October, 2017 was filed in court on even date. It is predicated on the grounds on its face and is supported by the affidavit of Mathews Musyimi Nzube, the first applicants herein, sworn on 5th October, 2017.

2. On the 6th November, 2017, the second and the third applicants filed a notice to authorize the first applicant to act, appear and plead on their behalf.

3. The application is opposed by Joseph Mwanthi Nyenze, the first respondent, Ezekiel Mwaka Musau, the third respondent and  Eunice Koki Musau, the    fourth respondent vide their replying affidavits  sworn on the 2nd  November, 2017 and  filed in court on  the  3rd November, 2017.

4. On the 6th November, 2017 the court directed that the application be disposed  off by way of written   submissions.  The fifth to sixth respondents though served   with the application, they did not file their reply nor did they file their  file their submissions.

5. The applicants as well as the respondents are agreed that in order for the order for injunction to be issued herein, the application must  satisfy the principles set out in the case of Giella vs Cassman Brown & Company Ltd [1973] EA 358.

6. The counsel for the applicant  urged the court to  find merit  in the  application and proceed to grant the orders sought.  He cited the Giella Case (Supra) as well as the case of  Richard  Mecha  Kibagendi  Vs John Mongare Nyarondia [2014] eKLRwhich case had referred to the case of Mrao Vs First American Bank of Kenya & 2 others [2003] e KLR 125  on what constitutes  a prima facie case.   The counsel  further relies on the case of Sun Palm Limited & 4 others V Pierre Loporte Ltd in Nairobi Civil Application Number 242 of 1997and  Jonson Kyai Ndoo Vs Good News Church of Africa & 3 others [2013] eKLR with regard to the principles of balance of convenience and whether or not the applicant would suffer irreparable  damage.

7. On the other hand, the counsel for the first to the fourth respondents urged the court to dismiss the application with costs as it lacks both in merit and in substance.

8. Regarding the principle of prima facie case with probability of success, the counsel for the first to  the fourth respondents submitted that the orders sought are for  stopping the fifth respondent from printing title  deeds in respect of Plot Nos. 1415, 1295, 1292, 1283 and 3972 Kisekeni Adjudication Section.  The counsel added that this ideally implies that the adjudication process has already been conducted and as such, the counsel submitted, the Land Adjudication Officer wrongfully issued consent  herein to  the applicants. The counsel opined that the process cannot  reach the stage of printing  title deeds unless the adjudication  process and records is complete.

9. The counsel further submitted that the crux of the  application is that plot  number 3972 was curved out  of inter alia their  Plot Nos. 1415, 1295 and 1292.  He pointed out that the replying affidavits  sworn on 2nd November, 2017 by the first and the third respondents confirm  that all the  aforementioned parcels have existed since  2001. The counsel added that the first, third and fourth respondents plots are no. 3972 and 1283 and that the first respondent has deponed inter alia that plot  number 3972 exclusively arose from the subdivision of his plot   number 1283. The counsel went on to submit that the applicants have not demonstrated by any tangible evidence that respondents secretly curved and/or grabbed portions of plot numbers  1415, 1295 and 1292. The counsel pointed out that the third  respondent has in paragraph 5 of his replying affidavit annexed copies of the  objection proceedings against the first respondent who successfully defended his plot number 1283 before he curved out plot  number 3972 which he sold to the fourth respondent.  The counsel further submitted that if the applicant felt dissatisfied by the decision of the adjudication officer, they had an option to file an appeal up to the minister before they came to court.

10. I am in agreement with the counsel for the first to the  fourth respondents in seeking to stop the process of printing  of title deeds in respect of Plot Numbers  1415, 1295, 1292, 1283 and 3972, this implies that adjudication process is complete. The adjudication officer wrongfully issued consent to applicants. If the applicants were dissatisfied with outcome of the objection proceedings that was filed against the respondents they had the option of filing an appeal to the minister as is required under section 29(i) (a) and (b) of the Land Adjudication Act Chapter 284 of the laws of Kenya  before coming to this court.  I hold that the applicants have not demonstrated that they have a prima facie case with probability of success.

11. On the principle of irreparable injury which cannot be adequately compensated by an award of damages, the counsel for the first to the fourth respondent submitted that adjudication process in Kisekini Adjudication Section is closed even though parties herein are yet to be issued with title deeds.  The counsel added that the third respondent has annexed a copy of a letter from the ministry of lands dated 5th May, 2017 confirming that plot number 3972 is in the  name of the third and the  fourth respondents. The counsel pointed out that the applicants who have not demonstrated their interest in the respondent’s parcels of land will not suffer any irreparable injury that cannot  be compensated by an award  of damages.

12. I have perused the affidavit in support  of the application. I  have not deciphered any interest that the applicants have in the respondents’ parcels of land and  I am in agreement with the counsel for the latter that principle  number two is not  proved by the applicants.

13. Regarding  the issue  of balance if convenience, the respondent’s counsel correctly submitted  that the applicants  having failed in the objection proceedings and having failed to appeal against the same, the balance of convenience tilts in favour of the respondents who have been  in possession and occupation of their respective portions of land.

14. Arising from the foregoing, my finding  is that the application lacks  merit and I will proceed to dismiss it with costs to the first and the  fourth respondents.

Signed, dated and delivered at Makueni on this5thday ofFebruary,2018

MBOGO C.G

JUDGE

In the presence of;

Mr. Kisongoa for the  Applicants

Mr.  Mulei  holding brief for Mr. F.M Mulwa   for the  1st, 3rd and 4th Defendants

Mr. Kwemboi – Court Assistant .

MBOGO C.G

JUDGE

5/2/2018