Rahil International Limited v Eric Agbeko & Chief Lands Registrar, Nairobi [2021] KEELC 1205 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC CIVIL CASE NO. E204 OF 2021

RAHIL INTERNATIONAL LIMITED..........................PLAINTIFF/ APPLICANT

VERSUS

ERIC AGBEKO.................................................1ST DEFENDANT/ RESPONDENT

CHIEF LANDS REGISTRAR, NAIROBI.....2ND DEFENDANT/ RESPONDENT

RULING

1. This ruling relates to the Plaintiff’s Notice of Motion application dated 4th June 2021 seeking injunctive orders against the 1st defendant in relation to the suit properties I.R No. 49556, L.R. No. 209/10801 pending the hearing and determination of the application and the suit. The Applicant also seeks orders of inhibition to be registered in respect of the aforementioned parcels of land. The application is premised on the grounds that the 1st Defendant purports to be the registered owner of the suit property through illegally, unlawfully and fraudulently acquired title to the said property which he has tried to dispose to third parties.

2. On 11th June 2016, Eboso J. ordered that the application be set down for inter parte hearing and granted interim orders of status quo in terms of prayer 3 in the application. This order was further extended by this court on 29th September 2021. It is worth noting that the Defendants have not entered appearance in this matter. The 1st Defendant was duly served through the daily newspaper as directed by the court on 24. 6.2021.

3. The Plaintiff avers that they are the legal bona fide owners of the suit property I.R No. 49556, L.R. No. 209/10801 Nairobi having purchased it from Mzuri Properties in 2006 for a consideration of Kshs. 20,000,000 and a transfer registered at the Lands Registry against the title on 29th July 2008. The Plaintiff states that they have since been in possession and occupation of the said property and have made payments of the accrued land rates. Documents supporting these averments have been annexed to the application. However, the Plaintiff came to learn that 1st Defendant too has a title to the suit properties triggering the filing of this suit.

Analysis and determination

4. This court has considered the Plaintiff’s application and affidavit. The issue for determination is: Whether the orders of injunction and inhibition sought by the applicant are merited.

5. In Giella v Cassman Brown & Co. Ltd [1973] EA the following grounds were established in relation to the orders of injunction: First, the applicant must demonstrate a prima facie case with a probability of success. Second, an interlocutory order will not be granted unless it is demonstrated that the Applicant might suffer irreparable injury which would not be adequately compensated by an award of damages.  Lastly, if the court is in doubt on the above two requirements, it will decide the application based on the balance of convenience. This was also reiterated in the Court of Appeal case of Nguruman Limited versus Jan Bonde Nielsen & 2 others (2014)eKLR.

6. The Plaintiff’s application was supported by documents that show how they became owners of the suit property. The Defendants did not enter appearance and in this regard the court had nothing to make reference to in weighing the strength of the Defendants’ case. I am satisfied that the Plaintiff has met the criteria set out in the aforementioned case law. In the interest of  justice it is only prudent to preserve the suit property until this suit is heard and determined.

7. The disposal orders are hereby given as follows:

i. The Plaintiff’s Notice of Motion Application dated 4th June 2021 is hereby allowed in terms of prayers 2 and 4.

ii. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS3RD  DAY OFNOVEMBER, 2021THROUGH MICROSOFT TEAMS.

LUCY N. MBUGUA

JUDGE

Inthe presence of:-

M/s Wangari h/b for Kisilu for the Plaintiff/Applicant

N/A for the Defendant

Court Assistant:  Eddel