The Aga Khan Foundation v Nurbanu Madatali Shivji Jamal [2019] KEELC 796 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MIGORI

ELC  APPEAL NO. 1 OF 2017

(Formerly Kisii High Court Civil Appeal  NO. 1 OF 2007)

THE AGA KHAN FOUNDATION......................................................APPELLANT

-VERSUS-

NURBANU MADATALI SHIVJI JAMAL.......................................RESPONDENT

(Being an appeal from Ruling and Order dated 26th January 2006 by Honourable C.A S Mutai, Senior Resident Magistrate  (as he then was)  in Homa-Bay  Senior Resident Magistrate’s court Civil Suit Number 7 of 2006 delivered on 24 September, 2008. )

JUDGMENT

A. Introduction

1. On 27th January 2006, one Nurbanu  Madatali Shivji Jamal (the respondent herein) originated  a suit by way of a plaint of even  date and amended on 24th February 2006 at the trial court to contest the Appellant’s move to sell LR NO. 1432/7 (Hereinafter referred to as  “the suit land” ).  It is her case that she is entitled to the suit land in equity since it had been a apportioned and registered in the name of Appellant by her (respondent’s) father –in law, Shivji Jamal Chandani (Chandani herein) to be used as a Mosque.  The respondent further argues that the intended alienation of the suit land by the Appellant wound render her together with the rest of her family members and Ismailia faithfuls without  a mosque or any other place for prayer.

2. The respondent asserts that the suit land is registered in the Appellant’s name as a lessee only.  That the respondent has been paying rents, rates and other outgoings to the relevant authority.  So, she is seeking a declaration, a permanent prohibitory injunction, costs of the suit land other alternative relief against the Appellant.

3. Simultaneously filed with the plaint, was the chamber summons application of even date under certificate of urgency.  The said application is the subject of this appeal.  In the application, the respondent sought the following orders;-

a) “That the Honourable court be pleased to issue an interim   order of temporary interlocutory injunction pending the hearing of this application inter-partes and for that purpose, the court to dispense with the appearance of the defendant in the first instance.

b) The Honourable Court be thereafter pleased to issue an order of temporary injunction to restrain the defendant or anybody deriving power or title through him from alienating the land reference No. 1432/7 or any property thereon until this suit is heard and finalized.

c) The costs of this application be costs in the cause.”

4. On 24th September, 2008, the trial court allowed the said application thus precipating this appeal.

The Appellant’s Case

5. The Appellant’s grounds of Appeal in the memorandum of appeal dated 16th October 2008 and filed in court on 21st October 2008 are  as hereunder;

1. “THAT the Respondent had absolutely no Locus Standi in the matter and, hence the learned magistrate erred grossly in ruling in her favour without considering this cardinal factor. Rather, he should have dismissed the application and even the suit.

2. THAT the principles relating to application for injunctions were sadly overlooked by the magistrate at the time of writing his ruling.

3. THAT the learned magistrate misdirected himself in taking a lackadaisical attitude towards the application for injunction.

4. THAT the ruling offends all the basic tenets of law, formulated and cemented by statutory law, equity and further grounded by relevant authorities.”

6. In its submissions, dated 9th September 2019 and filed on 16th September 2019, the Appellant made reference to the Replying Affidavit of Noor Sharif where it was denied that the suit land was purchased by Chandani  from Rahim Jivraj.   It was also submitted that the suit land    is a distinct and separate entity from L.R 1432/11 which was purchased the Chandani.   That by an indenture made on 20th June 1911, the suit land was demised to his Highness Sir Sultan Mahammed Shah Aga Khan by King George V and from then on became the lessee. That subsequent to his death, the suit land  was transmitted to the Present His Highness Shah Karim Alhussein Aga Khan through a Deed of Assent and was registered on 4th February 1963. The parcel was subsequently assigned to His Highness Shah Karim Alhussein by a Deed of Gift.

7. The Appellant argued that the Respondent had no locus standi in regard to the suit land.  That as such, the trial magistrate erred in fact and in law when he held that the Respondent had religious and sentimental attachment to the land.

8. Further attack was made on the trial Court’s misapplication of the principles for granting of an injunction. The Appellant submitted that the Respondent did not satisfy the minimum threshold set out in the locus-classicus case of Giella -vs- Cassman Brown & Co. Ltd, [1973] EA 358,which requires that the applicant must show prima facie case with a probability of success and the likely occurrence of irreparable injury that cannot be compensated by damages. The appellant further implored the court to be guided by  the Court of Appeal decision in Nguruman Limited -vs- Jan Bonde Nielsen & 2 Others [2014] eKLR,where the court echoed with approval the principles in Giella -vs- Cassman Brown (supra) as the pillars of  granting of an order of injunction, interlocutory or permanent.   The Court of Appeal held that the principles have to be applied as separate, distinct and logical hurdles. The Appellant further made reference to the Court of Appeal decision in Mrao Limited -vs- First American Bank of Kenya Limited [2003] KLRwhere it was held that;-

“A prima facie case is more than an arguable case. …It is not sufficient to raise issues. Evidence must show an infringement of right and the probability of success of the applicant’s case upon trial. That is clearly a standard that is higher than an arguable case.”

9. The Appellant submitted that the Respondent has no interest in suit land as it belongs to the appellant absolutely. That the Respondent’s purported attempt to make extension for the lease of the suit land  in the year 2002, was an unsuccessful bid to clothe herself with the locus standi as the lease would have expired in the year 2010 after 99 years from the year 1911. The Appellant submitted further that it had no obligation to cater for the Respondent’s spiritual or temporal wellbeing.   That her claim of irreparable loss not capable of compensation by damages, was not available to her.

10. Arguing on the limb of balance of convenience, the Appellant submitted that it tilted in favour of not granting the injunctive orders on the basis that the Respondent ought to have been aware that the suit land belonged to the Appellant.   Reliance was made on the case of Amir Suleiman -vs- Amboseli Resort Limited [2014] eKLRwhere it was held that;-

“…The court in responding to prayers of interlocutory injunctive reliefs, should always opt for the lower rather than the higher risk of injustice.”

11. The Appellant implored the court to find that the Respondent did not satisfy the minimum requirements for the granting of the injunctive orders as sought in the application.  That the trial court erred in the grant of the orders.

12. The court notes that the Respondent did not file her written submissions as ordered on 16th September 2019.

Issues for Determination

13. From the foregoing discourse, it is my considered view that the issues that emerge for determination are as hereunder;

a. Were the interlocutory injunctive orders properly issued by the trial Court?

b. What orders should this court make in view of the response to issue numbers (a) hereiabove?

Analysis & Determination

14. This court is alive to the fact that it has not been called upon to delve into the merits of proprietorship of the suit land. It’s only mandate as guided by the Memorandum of Appeal, is to interrogate the Ruling of the trial Court in which injunctive orders were issued. As the first appellate court, my  role is well settled and in particular,  to examine both matters of law and fact and analyse evidence with a new lense exhaustively. In so doing, the court must keep in mind and make necessary allowance of the fact that it did not have the opportunity to hear, see and assess the demeanour and veracity of the testimonies of the witness.

15. Simply put, it’s the duty of this court to re-evaluate, reassess and reanalyse the record of appeal and come up with its own conclusions. This position  was crystallized in the decision in Selle & another vs. Associated Motor Boat Co Limited & others (1968) EA 123where the duty of the first appellate court was set out, inter alia,

‘I ………………………… that this court is not bound necessarily to accept the findings of fact by the court below.  …………appeal ……….. is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings ……… (Abdul Hammed Saif vs. Ali Mohamed Sholan (1955) 22 EACA 270).’

16. The Court of Appeal in Vivo Energy Kenya Limited –vs- Maloba Petrol Station Limited & 3 others [2015] eKLR, stated as follows: -

‘The granting of an interim injunction is an exercise of judicial discretion and as an appellate court, we shall not readily interfere with the exercise of discretion …………… unless we are satisfied that the discretion has not been exercised judicially. In United India Insurance Co. Ltd vs. East African Underwriters (Kenya) Ltd [1985] EA 898, Madan JA (as he then was), aptly explained the essence of this approach ……………. at page 908:

17.  Similarly, in the case of Sergeant -v- Patel [1949], 16 EACA 63,the Court of Appeal made the following observation regarding the grant of interim injunctions;

“First the granting of an interim injunction is an exercise of judicial discretion and an appellate court will not interfere unless it be shown that the discretion has not been exercised judicially”

18. In  Mrao Limited case (supra), the Court of Appeal did define “a prima facie case” in civil cases.   It is well settled that in order to be granted injunctive orders, the applicant must establish the three principles established in the Case of Giella -vs- Cassman Brown & Co. Ltd (Supra). It is also evident that it’s exercise is a discretion of a court which ought not to be disturbed by the appellate court if it was exercised judiciously.

19. In the instant case, the Appellant contends in page two (2) paragraph five (5) of the submissions that the suit land herein is separate and distinct from the one that the Respondent claims was bought by Chandani.  However, gleaning from the Plaint, the Chamber Summons application and Affidavits thereof, it is evident that what is contested by the respondent at the trial Court is the suit land.    It is noted, too, that in paragraph 9 (a) of the Appellant’s Statement of Defence, the Appellant denies the fact that the suit land was acquired by Chandani.   In essence, the Appellant’s narrative has since mutated from the allegation that the suit land was not owned by Chandani  and that it is a separate and distinct entity from the one owned by the Respondents.

20. This court’s standpoint is that the trial Court issued injunctive orders in order to protect and preserve the suit property pending the determination of the suit. The religious attachment of the land to the suit land as alleged by the Respondent, cannot be downplayed and trivialized as not falling within the purview of irreparable compensable damages. Additionally, the inability of the Appellant to consistently demonstrate that the suit land is a separate entity from what the Respondent got injunctive orders, lends this court to the probable conclusion that the Respondent has a prima facie case.

21. It is not lost on this court that the issues in dispute in this suit have a Constitutional bearing under Article 32 (1), (2) and (3) of the Bill of Rights which provides that;

“32. (1) Every person has the right to freedom of conscience, religion, thought, belief and opinion.

(2) Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.

(3) A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.

22. I endorse the dicta in Mwangi  and another- vs- Mwangi (1986) KLR 328 that  this  dispute,  can be disposed of quickly as land is an extremely important aspect of the lives of ordinary people in society.  Therefore if the  interlocutory orders are lifted, it is my considered assessment  that this court would run a higher risk of injustice; see the decision of Hoffman, Jin the case ofFilms Role International Ltd –vs- Cannon Film Sales Ltd (1986) ALLER 772. On the ground of balance of convenience, I do hold that the circumstances of the case tilt in favour of the Respondent.

23. In the end, having regard to the totality of the circumstances of this case, I do find that the requirements for the granting of interlocutory injunction were satisfied and that the trial court exercised its discretion judiciously in granting the same.

24. Thus, I hereby make the following final orders;

a) The Instant appeal  initiated by way of  the memorandum of Appeal dated 16th October 2018, is devoid of merit and is hereby disallowed hence the Ruling and Order of the trial court delivered on 24th  June 2008 be and is hereby  upheld in it’s entirety.

b) In view of the age of this matter, I direct that the suit in the trial Court namely Homa-Bay SRMCC No. 7 of 2006 be heard on priority and marathon basis in the spirit of Article 159 (2) (b) of the Constitution of Kenya,2010.   The suit be mentioned before the Senior Principal Magistrate, Homa-Bay Law Courts for urgent directions on 7th November,2019 and the original file be returned to that court accordingly.

c)  Costs of the instant appeal to be borne by the Appellant.

Delivered, SIGNED and Dated in open court at Migori this 31st Day of OCTOBER, 2019.

G.M.A ONG’ONDO

JUDGE

In presence of :

Mr. Kisera learned counsel holding brief for G.S. Okoth learned counsel  for the respondent

Tom Maurice – Court Assistant