Mulihun Hassen Worseme v Habiba Nyambura Abdullahi [2020] KEELC 236 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC  CASE NO. 325 OF 2019

MULIHUN HASSEN WORSEME........................................PLAINTIFF

=VERSUS=

HABIBA NYAMBURA ABDULLAHI................................DEFENDANT

RULING

1. This is the notice of motion dated 3rd October 2019 brought under order 40 (1) and (2), 51 of the Civil Procedure Rules, 2010 and section 1A, 1B and 3A and section 63 (e) of the Civil Procedure Act Cap 21 and all other enabling provisions of the law.

2. It seeks orders:-

(1) Spent.

(2) Spent.

(3) That this honourable court do issue a temporary injunction restraining the defendant whether by herself, her agents, servants, or any other person claiming interest through her from trespassing, causing any form of nuisance, harassing, intimidating, evicting or interfering with the Plaintiff’s tenants’ occupation and or interfering with the plaintiff’s suit property, LR No. 209/7260/38, IR No 135663 Section 3, Eastleigh, Nairobi, pending the hearing and determination of the main suit.

(4) That the officer commanding Buruburu Police Station (OCS) be ordered to ensure compliance of the orders herein.

(5) That the cost of this application be provided for.

3. The grounds are on the face of the application and are set out in paragraphs (a) to (n).

4. The application is supported by the affidavit of Melihun Hassen Worseme the Plaintiff/Applicant sworn on the 3rd October 2019.

5. The application is opposed. There is a replying affidavit sworn by Habiba Nyambura Abdulahi, the defendant/respondent sworn on the 27th February 2020. There is also a replying affidavit sworn by Abdullahi Mohammed Sheikh sworn on the 22nd January 2020.

6. On the 30th January 2020, the court with the consent of the parties directed that the notice of motion be canvassed by way of written submissions.

7. I note that the plaintiff/applicant filed submissions dated 21/9/2020.  It appears the defendant/respondent did not file her written submissions. I will however rely on the comprehensive replying affidavit and the annexures.

8. It is the plaintiff’/applicant’s case that she is the registered owner of LR No. 209/7260/38, IR 135663 situated in Section 3 Eastleigh.  That she bought the same from Sheikh Abdullahi Mohammed and the same was transferred to her on 2nd March 2016.

9. It is further the plaintiff’s/applicant’s submission that she has established a prima facie as she is the registered owner and bonafide purchaser of  the suit property. That she has erected a six (6) storey building with thirty (30) residential flats which are leased out to tenants. That she is likely to suffer irreparable harm if the tenants are evicted. Further that the loss that will be occasioned cannot be adequately compensated by an award of damages. She has put forward the cases of Waithaka vs Industrial & Commercial Development Corporation (2001) KLR page 381; Joseph Siro Mosioma vs HFCK & 3 Others NBI HCCC No. 265 of 2007.

10. She further submitted that the balance of convenience tilts in her favour  as she is in possession of the suit property. She has put forward the case of Alice Awino Okello vs Trust Bank Ltd & another LLR No.625 (CCK), which was quoted in the case of Kisimani Holdings Ltd & Another vs Fidelity Bank (2013) eKLR. The plaintiff purchased the suit property before ELC 725 of 2016 was instituted.  The doctrine of lis pendens does not apply. She prays that the application be allowed.

11. I have considered the Notice of Motion, the affidavit in support and the annexures.  I have considered the affidavits in response together with the annexures, the written submissions and the authorities cited.   The issues for determination are:-

(i) Whether the plaintiff’s/applicant’s application meets the threshold for grant of temporary injunction.

(ii) Who should bear costs?

12. At this juncture it is necessary to briefly examine the legal principles governing the applications of this nature. In an application for interlocutory injunction the onus is on the applicant to satisfy the court that it should grant an injunction. The principles were set out in the precedent setting case of Giella vs Cassman Brown & Co. Ltd [1973)EA 358. In the case ofMrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 the Court of Appeal set out what amounts to prima facie case.

13. It is the plaintiff’s/applicant’s case that she is the registered owner of the suit property being LR No. 209/7260/38. She stated that she bought it from Sheikh Abdulahi Mohammed and the same was transferred to her on 2nd March 2016.

14. It should be noted that Sheikh Badullahi Mohammed was the defendant in ELC 725 of 2016 while the defendant herein was the plaintiff. The plaintiff/applicant has annexed a copy of title in the name of Sheikh Abdullahi Mohammed showing that the same was transferred to her on 2nd March 2016 for Kshs.6 million.  Nothing has been attached to show how the said Sheikh Abdullahi Mohammed acquired the said property in the first place.

15. The plaintiff/applicant has also annexed a National Environment Management Authority Licence dated 17th March 2016 and an approval from National Construction Authority dated 16th March 2016.  The developer is said to be Sheikh Abdullahi Mohammed. This contradicts the plaintiff’s/applicant’s case who states that the suit property was transferred to her on 2nd March 2016.  The said Sheikh Mohammed swore a replying affidavit but did not bother to explain how he acquired the suit property.

16. The defendant/respondent on the other hand has attached a letter of allotment dated 18th December 1996 from the then Nairobi City Council.  It is signed by the Town Clerk.  There is also a Deed Plan No 209012 dated 9th October 1996.  It shows the defendant/respondent was allocated LR No 209/7260/38, Eastleigh.  There is a receipt for payment of stand premium and ground rent dated 17th April 2001 in the defendant’s name.  There is a lease dated 5th June 2001 between the defendant and the Nairobi City Council. The same is executed by the Town Clerk and Mayor on behalf of the Nairobi City Council.  There is a ruling in ELC 63 of 2010 which the defendant had sued one Abdi Hassan.

17. I have gone to these lengths to demonstrate that the defendant’s/respondent’s interest in the suit property can be traced to a letter of allotment dated 8th December 1996. The defendant/respondent obtained judgment in ELC 725 of 2016 against Sheikh Abdullahi Mohamed.

18. I find that the plaintiff/applicant has not established a prima facie case with a probability of success at the trial.

19. In the Case of Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another [1990] KLR 557Bosire J(as he then was)stated that:-

“to succeed in an application for injunction an applicant must not only make a frank and full disclosure of all relevant facts to the just determination of the application but must also show that he has a right, legal or equitable, which requires protection by injunction.”

I am not satisfied that the plaintiff/applicant deserves this kind of protection.

20. I also find that the plaintiff/applicant has failed to demonstrate that she will suffer irreparable loss that cannot be compensated by an award of damages, if these orders are not granted. I am guided by the case of Oloo vs Barclays Bank of Kenya Limited [2002] KLR 394.

21. All in all, I find no merit in this application and the same is dismissed with costs to the defendant/respondent.

It is so ordered.

Dated, signed and delivered in Nairobi on this 16th day of December 2020.

…………………

L. KOMINGOI

JUDGE

In the presence of:-

No appearance for the Plaintiff

Mr. Ongegu - for the Defendant

Kajuju - Court Assistant