PLISTA AKUMU BAYI v SUSAN ONGARO BAYI & 2 Others [2013] KEHC 4340 (KLR)

REPUBLIC OF KENYA

High Court of Kisii

Civil Case 61 of 2012 [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]

PLISTA AKUMU BAYI ……………………......………….. PLAINTIFF/APPLICANT

VERSUS

SUSAN ONGARO BAYI ………………..………. 1ST DEFENDANT/RESPONDENT

JOHN META BAYI …………………………….. 2ND DEFENDANT/RESPONDENT

ALFONSE ODIWUOR BAYI ………………….. 3RD DEFENDANT/RESPONDENT

RULING

1. There are 2 applications before the court. The first application is dated 18th February 2012. The second one is dated 11th June 2012. Both applications are filed by the plaintiff. Both applications seek injunctive orders to restrain the Defendants/Respondents by themselves, agents, servants, employees and/or anyone claiming under the Defendants/Respondents from entering upon, re-entering, trespassing onto, cultivating, digging, building structures, interfering with and/or in any other manner whatsoever dealing with the suit landLR NO. KANYAMKAGO/KAWERE/1/1351and/or any portion thereof. The plaintiff/applicant also prays that costs of the application be paid by the Defendants/Respondents.

2. Since the two applications seek the same order, the provisions of section 6of the Civil Procedure Act do not allow the application dated 11th June 2012 to stand. The applicant was aware of these provisions and asked the court to consolidate the two applications and to hear them together on priority basis. Accordingly, the two applications are hereby consolidated under the application dated 18th February 2012.

3. The application is premised on the grounds on the face and by the supporting affidavit sworn by the applicant, Plista Akumu Bayi, on 18th February 2013. The gist of the Supporting Affidavit is that as registered owner of the suit land, the applicant is entitled to the full use and occupation of the same without any interference from the Defendants/Respondents who have, without any colour of right trespassed onto the suit land and commenced to cultivate and build/erect temporary structures and/or buildings on a substantial portion of the suit land.

4Contemporaneously with the application, the plaintiff/applicant filed a plaint dated 18th February 2012. The plaintiff/applicant avers that at all material times relevant to this suit, the plaintiff/applicant has been and still is the registered proprietor of the suit land measuring approximately 5. 64 Hectares which parcel of land was registered in the plaintiff’s name on 23rd July 1981. Annexed to the application and marked “PAB 1” is a copy of the Certificate of Official Search dated 18th January 2012 in respect of the suit land. The plaintiff prayed for, among other reliefs a permanent injunction restraining the Defendants either by themselves, agents, servants and/or

anyone claiming under the Defendants from entering upon, re-entering, trespassing onto, cultivating, building structures, interfering with and/or in any other manner dealing with the suit land, that isLR NO. KANYAMKAGO/KAWERE 1/1351 and/or any portion thereof.

5. The application is opposed vide the Replying Affidavit of Bima Shekameta Bai dated 20th June 2012. The deponent avers that though the plaintiff/applicant is the registered proprietor of the suit land, she was so registered to hold the same in trust for the family of the late Alfred Bai Obilo. The deponent also avers that the 1st defendant has occupied a portion of the suit land since 1977 when the 1st Defendant and the Plaintiff were brought on the suit property by the deceased. The deponent prays that the plaintiff’s application be dismissed with costs.

6. When this application came up before my sister, Hon. Lady Justice Korir on 26th June 2012 the parties consented to canvass the application by way of written submissions. The submissions were to be filed within 7 days. The matter was slated for mention on 10th July 2012, but on 9th July 2012 the lawyers went on strike and the matter stalled. Thereafter, the honourable judge fell ill and was unable to proceed with the matter further. The matter was then mentioned before me on 31st January 2013 with a view to taking a ruling date based on the filed submissions. 7. I have carefully read through the plaintiff’s submissions filed in court on 11th June 2012. The defendants/respondents did not file any submissions. The question that arises for determination is whether the plaintiff/applicant has satisfied the conditions for the granting of an injunction as set out in the well known case ofGiella –vs- Cassman Brown & Co. Ltd. [1973] EA 358 and in Mrao Ltd. & 2 others –vs- First American Bank of Kenya Ltd. & 2 others [2003] KLR 125. In the above cited cases, it was held, inter alia, that the power of a court in an application for an interlocutory injunction is discretionary, and the principles for granting an interlocutory injunction are that:-

a)The applicant must show a prima facie case with a probability of success;

b)An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not be adequately compensated by an award of damages;

c)If the court is in doubt, it will decide an application on the balance of convenience.

8. In the Mrao Ltd. case, the court defined a prima facie case in a civil application to include, “but is not confined to a genuine and arguable case”. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

9. In the case of CHARTER HOUSE INVESTMENT LTD –VS- SIMON K. SANG & 3 OTHERS (2010) e KLRthe court of appeal observed- “Injunction is an equitable and discretionary remedy, given when the subject matter of the case before court requires protection and maintenance of the status quo. The award of temporary injunction by court of equity has never been guaranteed as a matter of right, even where irreparable injury is likely to result to the applicant. It is a matter of sound judicial discretion in the exercise of which the court balances the conveniences of the parties and possible injuries to them and third parties.”

10. After considering the facts in the instant case, and applying the relevant law, I am persuaded that the plaintiff/applicant has established a prima facie case with a probability of success. The plaintiff/applicant has demonstrated that the suit land is registered in her name and has been so registered since 23rd July 1981. The only encumbrance noted on the title is a charge to secure the sum of Kshs.45000/= only from Agricultural Finance Corporation on 17th September 1983. The land title to the plaintiff/applicant is absolute.

11. On the other hand, the Defendants/Respondents have made only unsubstantiated claims that the suit land was registered in the plaintiff’s/applicant’s name in trust for the entire family of the late Alfred Bai Obilo.

12. In the premises and for the reasons aforesaid, I allow the application dated 18th February 2012 in terms of prayer 3 thereof pending the hearing and determination of this suit. The suit shall be heard before the Environment and Land Court. There shall be no order as to costs of this application.

13. It is so ordered.

Dated and delivered at Kisii this 27th day of March, 2013

RUTH NEKOYE SITATI

JUDGE.

In the presence of

Mrs Asati for Oguttu-Mboya(present) for Plaintiff/Applicant

M/s Oyoo & Company (absent) for Defendants/Respondents

Mr. Bibu Court Clerk

RUTH NEKOYE SITTI

JUDGE.

HCCC (KISII) NO. 61 OF 2012

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