PAUL MWANGI NJOROGE V SIMON G. NDEGWA & ANOTHER [2013] KEHC 3068 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Environmental & Land Case 211 of 2013 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]

PAUL MWANGI NJOROGE .....................PLAINTIFF/APPLICANT

=VERSUS=

SIMON G. NDEGWA..................1ST DEFENDANT/RESPONDENT

NAIROBI CITY COUNCIL............2ND DEFENDANT/RESPONDENT

RULING.

1. By an application dated 11th February, 2013 , the applicant  hereinPaul Mwangi Njoroge has sought for orders :-

i.Spent,

ii.Spent,

iii.That pending the hearing and determination of this suit, the Defendants/ Respondents by themselves , their agents and or servants or employees be restrained from trespassing , constructing thereon, developing , selling, alienating , disposing off, dealing with , trespassing , and or in any way dealing with the plaintiff/ Applicant Plot No. 226 Kahawa West .

iv.That cost of this application be provided for.

2. The application was supported by the grounds on the face of the application and also by the supporting affidavit of Paul Mwangi Njoroge. The Plaintiff stated that he was the owner of Plot No. 226 Kahawa West (Phase II) which was allocated to him by the 2nd   Defendant on the 11th August 1992. He further stated that he has been in possession of the said plot since 1999 when the beacons    were shown to him by 2nd Defendant and has been paying  annual rent since then. He contended that on 2nd February, 2013 he found a trespasser on his plot who was busy constructing permanent structures thereon. He further learnt that it was the 1st Defendant who was unlawfully constructing the permanent structure with full knowledge of the 2nd Defendant. He further stated that the plot has never been re-possessed from him and 1st Defendant has no  claim or interest over the same. Plaintiff     alleged that he intends to construct on the said plot but he cannot do so now due to the Defendants action and he  stands to suffer irreparable loss unless the Defendants are restrained from dealing or interfering with the plaintiffs Plot No.226 Kahawa West

( phase II)

3. In his Replying Affidavits Paul Mwangi Njoroge reiterated that he was allocated Plot No. 226 Kahawa West (Phase II) on 11th August,     1992. He further paid Stand Premium and has continued to pay annual rent. He annexed various annextures to support his claim. The annextures were PMN I, PMN II, PMN III, IV, V, and VI.   He further averred in his Affidavit that he is still registered as the owner of the plot and the 1st Defendant action is therefore unlawful. That he is in the process of commencing construction on the plot and even obtained finance for the project but he cannot do so due to the action of 1st Defendant.

4. The application was opposed by the 1st Defendant, Simon  Gwandaru Ndegwa. The 1st Respondent averred that he is  currently in possession of the suit property plot No. 226 Kahawa West Phase II. He contended that he bought it in the year 2012 from Mary Njoki Ndegwa and Joseph Ndegwa Ndungu. He produced various documents to support his assertions. He alleged that the plaintiff has never been in possession of the    property and that the only time he paid ground rent since 1992  was  on 25th January, 2013 after Respondent orderer the plaintiff  workers not to enter the property.

5. I have considered the instant application and the rival arguments by both counsels. The issue for determination is whether the Applicant has demonstrated that he has a prima facie case with    high probability of success. Has the applicant’s application met the  threshold for granting of injunctive orders as was held in the case of Giella Vs Cassman Brown Ltd (1973) EA 358.

These conditions are that the applicant must show a prima facie case with a probability of success. Secondly, an interlocutory Injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages . Thirdly if the Court is in doubt, it will decide an application on the balance of convenience.

From the available evidence the applicant herein P Mwangi Njoroge obtained letter of allotment for Plot No. 226 Kahawa West on 11th August, 1992 . That is evidence by PMN I.

The applicant also paid for the stand premium on the same date as per PMN 2 and obtained the Beacon certificate on 11/8/1992 . The other evidence of payment for City Council shows rent on 25/1/2013. The Respondent alleged that applicant paid that amount after the Respondent kept away the applicants workers. There was no evidence that applicant was in possession of this plot since 1992 nor paid for the annual rates or ground rent to the City council of Nairobi. There is also evidence from the Respondent that that the plot in question Plot No. 226 Kahawa West phase II was allocated to one Peter Muchokion 4/11/1997 as per SNI. The said Peter Muchoki paid the Stand Premium in November, 1997, ground rent in the year 2006 and 2007 as per SN3 and SN4 .

He also received Beacon Certificate on 4/11/2997 as per SN4. The applicant therefore has not been in quiet enjoyment of the said plot as there is no evidence that he was in possession of the same. Though he has letter of allotment dated 1992 he has not provided evidence that the same was not revolked.

The Court cannot find and hold that applicant has a prima facie case with a probability of success. The applicant has not been in possession of the plot in question. Though he alleged that he now intends to put up some residential houses on the plot and he had even obtained a financier, there is no such evidence and I cannot therefore find and hold that the applicant might suffer irreparable loss or injury which would not adequately be compensated by an award of damages. I rely on the case of East Africa industries Vs Trufoods (1972) EA 420.

On the balance of convenience, the Defendant contended that he took over  possession of the plot after he bought it from one Mary N Ndegwa and Joseph Ndungu in the year 2012. On the other hand, there is no evidence that the Plaintiff has been in occupation of the plot since 1992 when it was allegedly allotted to him. The balance of convenience would therefore not tilt in favour of the applicant herein. Refer to the case of James Jamwa Ndeda Vs. Dorine Alouch Oluoch,  Kisumu High Court Civil Case No. 136 of 2007.

Having considered the Notice of Motion in totality and the annextures thereon, i find that the plaintiff has failed to satisfy the conditions for the grant of temporary injunctions as set out in the case of Giella Vs Cassman Brown Ltd.  However, this Court has a duty to preserve the property and safeguards the interest of each party pending the hearing and determination of the suit. It would be detrimental to the applicant if the suit property or plot is sold or alienated before the suit is determined.

I will be guided by the decision in the case of Ougo & Another Vs Otieno 1987 KLR 1where the Court of Appeal stated that:

“ The general principle where there are serious conflicts of facts,  that court should maintain the status quo until the dispute has been          decided in trial”.

I will therefore, issue the Status Quo Order in the following terms

a)Pending the hearing and determination of the main suit, none of    the parties herein will have any dealing or interference on the disputed Plot No. 226 Kahawa West Phase II. The plot will remain as it is at the moment.

b)The Plaintiff will have to set the main suit for hearing within a  period of 12 months failure to do so, the Status Quo Orders will automatically lapse or be discharged after 12 months.

Costs of the application be in the cause.

Dated, signed and delivered this 24th May, 2013

L. N. GACHERU

JUDGE

In the Presence of:-

………………………………………For the Plaintiffs

…………………………………....For the Defendant

…………………………………..............Court Clerk

L. N. GACHERU

JUDGE

[if gte mso 9]><![endif][if gte mso 9]><xml>

Normal 0

false false false

SW X-NONE X-NONE

</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]