Stanley Mwangi Ndenge, Jackson Mwangi Irungu, Joel Ng’ang’a Kabogo & Stephen Oduor Oteng’o v Nairobi City County [2019] KEELC 3551 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CIVIL CASE NO. 33 OF 2016

STANLEY MWANGI NDENGE...........................1ST PLAINTIFF/APPLICANT

JACKSON MWANGI IRUNGU..........................2ND PLAINTIFF/APPLICANT

JOEL NG’ANG’A KABOGO..............................3RD PLAINTIFF/APPLICANT

STEPHEN ODUOR OTENG’O..........................4TH PLAINTIFF/APPLICANT

VERSUS

NAIROBI CITY COUNTY..................................DEFENDANT/RESPONDENT

RULING

1. This is the Notice of Motion dated  21st January 2016 brought under order 40 rule 1, 2, 3, 4, 5, 6, 7, 8, 9 & 10 of the Civil Procedure Rules and Section 3 and 3A of the Civil Procedure Act, and any other enabling provisions of the law.

2. It seeks orders:-

(1)  Spent

(2)  Spent

(3) That an injunction do issue restraining the defendant/respondent by itself, agents, employees and/or servants, or any person claiming under it or otherwise be restrained from entering upon the plaintiffs/applicants premises situated Plot No. C5-56. 1 Kayole road, Nairobi, from evicting, subdividing, selling and/or dealing in whatever manner and/or interfering with the plaintiffs’ quiet and peaceful occupation of the suit property pending hearing and determination of this suit.

(4) That the Officer Commanding Police Station Buruburu does ensure compliance of the said orders.

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

3. The grounds are on the face of the application and are:-

(1) That the plaintiffs are the legal, rightful and beneficial owners of the suit property through allotment.

(2) That without notice or any justifiable reason the respondent descended on the applicants’ property with tractors and poured solid and big boulders hence sealing the entrance and exits.

(3) That the applicants stand to suffer irreparable damages and loss if the said orders are not granted as the suit property is their sole means of livelihood.

(4) That the respondent is trespassing on the applicants’ property with the intention of unlawfully evicting the applicants.

(5) That it is in the interest of justice that the orders herein as sought be granted.

4. The application is supported by the affidavit of Stanley Mwangi Ndenge the 1st plaintiff/applicant sworn on the 21st January 2016.

5. The application is opposed.  There is a replying affidavit sworn by N.I. Nyoike, Chief Valuer of the defendant/respondent on the 22nd July 2017.

6. On the 5th September 2016, the court directed that the Notice of Motion be canvassed by way of written submissions.

The plaintiffs’ submissions

7. The plaintiffs/applicants are tenants on Plot C5-56. 1 Kayole road through an allocation licence dated 30th June 1991.  They have been paying annual rent of Kshs.15,000/- to the defendant until 2015.  That on 31st December 2015 some people came to the place of business and threatened to evict them.  They state that they will suffer irreparable loss and damage if these orders are not granted.

The Defendant’s Submissions

8. In May 1991, the defendant issued a temporary occupation licence to one Stanley Mwangi Ndenge to temporarily operate Plot C5 – 56. 1 Kayole road.  That he was paying Kshs.15,000 per annum.  He continued operating at the said plot until 2015 when the defendant opted to develop the said plot for public use.  On 31st December 2015, the defendant sent some of its workers to survey the plot.  This prompted this suit.

9. The temporary occupation licence issued to the 1st plaintiff/applicant cannot be transferred or assigned to someone else other than the licensee without approval of the defendant.  They have put forward the case of Runda Coffee Estate Ltd vs Ujagar Singh [1966] E.A 564.  A temporary occupation licence does not give one permanent ownership.

10. The plaintiffs cannot be granted conservatory orders when they have no right of ownership.  They have also put forward the case of Barker vs Gee.  No interests were conveyed to the 1st plaintiff/applicant by the temporary occupation licence hence the applicants are not entitled to any orders.  It prays that the application be dismissed with costs.

11. I have considered the pleadings, the notice of motion, the affidavit in support and the annexures.  I have also considered the replying affidavit and the annexures, the written submissions of counsel and the authorities cited. The issues for determination are:-

(i) Whether or not the plaintiffs/applicants’ application meets the threshold for grant of temporary injunctions.

(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 injunction the onus is on the applicant to satisfy the court that it should grant an injunction. The principles were set down in the precedent setting case of Giella vs Cassman Brown & Co. Ltd [1973] EA 358.  In the case of Mrao Ltd vs First American Bank of Kenya Limited and 2 Others [2003] KLR 125, the Court of Appeal stated what amounts to a prima facie case.

13. In the case of Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another 1990 KLR 557Bosire J (as he then was)  held 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.”

14. I am not satisfied that the plaintiffs/applicants deserve this kind of protection.

15. The plaintiffs/applicants have no letter of allotment in respect of Plot C5-56 1 Kayole road.  They base their claim on a temporary occupation licence issued to the 1st plaintiff/applicant. The same cannot grant them any legal or equitable right to the plot.  It is the defendant’s/respondent’s case that the said open space is public land.

16. According to Black Law Dictionary, 10th Edition. A licence means “a privilege granted by a state or city upon the payment of fee, the recipient of the privilege then being authorized to do some act or series of acts that would otherwise be impermissible”.

In the case of Faraj Maharus (Administrator of the Estate of Khadija Rajab Suleiman) vs J. B. Martin Glass Industries & 3 Others CA No 130 of 2003 (unreported) the Court of Appeal held thus:-

“Thirdly, the temporary occupation licence issued in 1926, could not oust the certificate of title granted under the registration of Title Act.  The appellant does not possess title under the Act”.

17. I agree with the defendant’s counsel submission that the plaintiffs/applicants herein are trespassers.  I find that they have not established a prima facie with a probability of success at the trial.

18. I also rely on the cited case of Simiyu vs Walambamata [1985] eKLR in which J Nyarangi held

“the anticipation the land would devolve on the respondents, didn’t confer on them any rights on the land”.

I agree with the defendant’s counsel submissions that the plaintiffs/applicants cannot purport to be having legal ownership of the said plot by just having a temporary occupation licence under the plaintiff’s name which cannot be allotment letter.

19. I find that the plaintiffs/applicants have failed to demonstrate that they will suffer irreparable loss which cannot be compensated by award of damages if the orders are not granted.

20. The upshot of the matter is that I find no merit on this applicant and the same is dismissed with costs to the defendant/respondent.

It is so ordered.

Dated, signed and delivered in Nairobi on this 30TH day of APRIL 2019.

............................

L. KOMINGOI

JUDGE

In the presence of:-

............................................................Advocate for the Plaintiffs

...........................................................Advocate Defendant

...........................................................Court Assistant