Nicholas Ngula, Abed Musembi Kithome & Rebecca Mutei Ngila v Philip Kalatu Wambua [2018] KEELC 4221 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT  AND LAND  COURT

AT MAKUENI

ELC CASE NO 145 OF  2017

FORMERLY NAIROBI ELC 1609 OF 2016

FORMERLY MACHAKOS  ELC 235 OF 2016

NICHOLAS NGULA........................................1ST PLAINTIFF

ABED MUSEMBI KITHOME.......................2ND PLAINTIFF

REBECCA MUTEI NGILA............................3RD PLAINTIFF

VERSUS

PHILIP KALATU WAMBUA..............................DEFENDANT

RULING

1. There  is before  me a  notice of motion  application expressed to be  brought   under Article 48 of the constitution , section  3 A of  the   Civil Procedure Act, order  40 rules  1 and 2 of the Civil Procedure  Rules and all enabling provisions of the law for orders:-

1. Spent

2. Spent

3. That   Honourable court be pleased  to grant temporary injunction against the  defendant/respondent, by himself, his servants, agents and/or employees from restraining, intimidating, threatening and/or harassing the plaintiffs/applicants from accessing their  Plot  No. 176  Masongaleni Settlement  Scheme  pending  hearing and determination  of the main suit.

4. That  the costs of this application  be met by the   respondents.

The application is predicated  on the grounds on its face and  is supported  by the affidavit of Nicholas  Ngula, the first applicant herein sworn on behalf of his  co-applicants on the 20th December, 2016 and filed in court on even date together with the  application which is dated the  21st December, 2016.

2. The respondent  has the opposed the application vide his replying affidavit dated 11th October, 2017 and filed in court on the 18th October, 2017.

3. On the 2nd November, 2017 the court directed that the application be disposed off by way of written submissions. Consequently, the respondent filed his submissions on the 20th  December, 2017.  On the other  hand, the applicants filed theirs on the 18th January, 2018.

4. I have read the  submissions and I note that  all the  parties are agreed that the grant of the  prayers sought by the applicants   turns   on the principles set out in Giella Vs Cassman Brown & Company Ltd [1973]EA 358. I need not repeat those principles herein as they are well known.  I will however proceed to determine whether or not the prayers sought  by the applicants should be granted.

5. On the principle of prima facie case with probability of success, the applicants’ counsel submitted that there were sale agreements between the applicants and the respondent over plot number 176 Masongaleni.  He added that the respondent acknowledges receipt of money from the second applicant.  The counsel further submitted that the respondent has not demonstrated  that he is indeed the proprietor  of the suit land.  The respondent’s  counsel’s  submissions are that the applicants are not in possession of the suit land. The counsel added that the affidavit in support of the application  is defective.

6. The first applicant has deposed in paragraph 3 of his affidavit that he and his co-applicants purchased the suit land from Philip Kalalu Wambua on diverse dates between 2000 and  2004. He  goes on to depose  that  the Philip Kalalu Wambua had bought the suit land from the respondent.  The agreements though marked as NN-1 were never annexed to the affidavit.  This raises the issue of whether or not proprietorship changed hands between the respondent and Philip Kalalu Wambua  because in my view, it would have been necessary to add a co-respondent going by the  contents of paragraph 3 of the supporting affidavit. It presupposes that transfer is yet to take place.  I, therefore, hold that the applicants have not established a prima facie case with probability of success.

7. Have the applicants shown that they will suffer irreparable damage  if injunction is not granted? The applicants counsel submitted that the applicants have invested in their portions of land and that the   respondent  who is a retired teacher cannot get resources  to compensate them. The  respondent’s counsel is silent  on this issue. In my view the investments that  the applicants have put in their respective portions of land are quantifiable and the applicants  can be  compensated by way of damages. There is nothing   in the supporting  affidavit by the first applicant to show the irreparable damage or injury that the applicants are likely to suffer.  The applicants have not shown that the respondent, though retired teacher,  is a man of straw. The application must also fail under this ground.

8. Regarding  the principle of balance of  convenience, the applicant’s counsel submitted  that it is  only prudent  that   the interests of both parties to this suit  are protected  by restraining the respondent from interfering with  the  applicants’ quiet  possession. On the  other hand, the respondent’s counsel submitted that the balance of   convenience  tilts in favour of the respondent.

9. From the affidavit evidence it is clear that the applicants have not proved that the balance of convenience tilts in their favour  and besides, they were under obligation to prove the three principles sequentially. They have failed to do so.  In the circumstances, my finding is that the application lacks merit and I proceed to dismiss the same with costs to the respondent.

Signed, dated and delivered at Makueni this  21stday of February,2018

MBOGO C.G

JUDGE

In the  presence of;

Mr.  Kwemboi Court Assistant

Mr Langalanga holding brief for Mr. Kasyoka for the respondent

Mr. Tamata holding  brief for  Mr. Mulandi for the  applicants

MBOGO C.G

JUDGE

21/2/2018