West End Butchery Limited v Benedict Muimi Mungithya, Musabaki Company Limited,Florence Akoth Odhiambo,Laina Katika Morokia,Boniface Kiio Mutune,Jones Mwanzia Mutune,Patrick Okoth,Consolata Mboya & Consolata Mboya [2018] KEELC 2180 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 434 OF 2017

WEST END BUTCHERY LIMITED..........................PLAINTIFF/1ST RESPONDENT

VERSUS

BENEDICT MUIMI MUNGITHYA.......................DEFENDANT/2ND RESPONDENT

MUSABAKI COMPANY LIMITED.............................INTENDED 2ND DEFENDANT

FLORENCE AKOTH ODHIAMBO............1ST INTERESTED PARTY/APPLICANT

LAINA KATIKA MOROKIA......................2ND INTERESTED PARTY/APPLICANT

BONIFACE KIIO MUTUNE........................3RD INTERESTED PARTY/APPLICANT

JONES MWANZIA MUTUNE....................4TH INTERESTED PARTY/ APPLICANT

PATRICK OKOTH.......................................5TH INTERESTED PARTY/ APPLICANT

CONSOLATA MBOYA.................................6TH INTERESTED PARTY/APPLICANT

MBULA NGUKU WAEMA.........................7TH INTERESTED PARTY/ APPLICANT

RULING

1. This Ruling is in respect of two Applications.  The first Application is dated 5th January, 2018 and was filed by the Interested Parties.  The second Application dated 14th February, 2018 was filed by the Intended 2nd Defendant.

2. In the Application dated 5th January, 2018, the Interested Parties have sought for the following orders:

a. That this Honourable Court be pleased to grant leave to enjoin Florence Akoth Odhiambo, Laina Katika Morokia, Boniface Kiio Mutune, Jones Mwanzia Mutune, Patrick Okoth, Consolata Mboya and Mbula Nguku Waema as Interested Parties in this suit.

b. That the Orders/Ruling/Decisions made by this Honourable Court (Honourable Justice C. Mbogo) vacation duty Judge on 20th December, 2017, be reviewed, varied and/or set aside pending hearing and determination of this Application inter partes.

c. That in the alternative and in addition to any of the above substantive orders being granted and as a consequence therefore, an interim orders be issued restraining the Plaintiff/Respondent by itself, its agents, its servants from evicting, offering for sale, demolishing the Interested Parties structures or generally interfering with the Interested Parties quiet possession of the disputed land L.R. No. 7149/10 (Original Number 7149/2/9 (IR No. 30601).

d. That further in the alternative and without prejudice and/or in addition to the above substantive orders being granted and as a consequence therefore direction be issued that this present Application in Machakos ELC. No. 434 of 2017 be heard on 1st February, 2018 together with our Application dated 30th March, 2017 in Machakos ELC. No. 155 of 2017 (Florence Akoth Odhiambo & 6 others vs. West End Butchery Limited) which is scheduled for hearing on 1st February, 2018.

e.  That the costs of this Application be provided for.

3. The Application is supported by the Affidavit of the 1st Interested Party who has deponed that the Plaintiff has threatened to evict the Interested Parties from land known as L.R. No. 7149/10 (the suit land) and/or demolish their structures; that the Interested Parties have been in occupation of the suit land for a period of over twelve (12) years and that they have settled on the suit land peacefully for a period of over twelve (12) years.

4. According to the Interested Parties, they filed in Machakos ELC. No. 155 of 2017 a suit claiming the suit land under the doctrine of adverse possession and that the Plaintiff was aware of the said suit as at the time of filing the current suit. The 1st Interested Party deponed that the Plaintiff mischievously filed this suit with the intention of having them evicted from the suit land and the orders being sought should be granted.

5. In response to the said Application, the Plaintiff’s Director deponed that the Application is an attempt to revisit and reinstate the orders that had been sought and discharged in ELC. No. 155 of 2017; that the Applicants have not annexed any document on their Affidavit to assert their alleged rights to the suit land and that the Defendant has been sub-dividing and selling portions of the suit land to prospective buyers.

6. The Plaintiff’s Director finally deponed that the filing of the current suit was to safeguard the suit land which would also be advantageous to the Interested Parties and that it is not the Interested Parties who are putting up new structures on the suit land.

7. On the other hand, the Intended 2nd Defendant’s Application dated 14th February, 2018 is seeking for the following orders:

a. That Musabaki Company Limited be enjoined in these proceedings as the 2nd Defendant.

b. That an interlocutory injunction be issued restraining the Plaintiff, 1st Defendant and Interested Parties from trespassing, evicting, purporting to evict or in any other way interfering with the quiet enjoyment of Land Reference  No. L.R. No. 7149/10 (I.R No. 30601) pending hearing of this Application inter partes.

c. That an interlocutory injunction be issued restraining the Plaintiff, 1st Defendant and Interested Parties from trespassing, evicting, purporting to evict or in any other way interfering with the quiet enjoyment of Land Reference No. L.R. No. 7149/10 (I.R. No. 30601) pending hearing of the suit.

d. That this Honourable Court be [......] to grant any other orders in preservation of the suit property as it deems fit.

e. That cost of this Application be provided for.

8.  According to the Applicant, it is the lawful owner of the suit land. The Applicant’s Managing Director deponed that in the month of December, 2018 (sic), he was informed that government officials had visited the suit land; that he later learnt that the said government officials were actually officials from the Machakos Law courts and that he came to learn about the existence of the suit later on.

9. The 2nd Intended Defendant’s Director finally deponed that the 2nd Defendant has a Certificate of Title in respect to the suit land and that the Applicant has constructed unfinished stone walled bungalows on the suit land.

10. In reply to the Application dated 14th February, 2018, the Plaintiff’s Director deponed that the Plaintiff has always been the registered proprietor of the suit land; that the copy of the title attached on the Applicants’ Affidavit is a forgery and that this court and the Court of Appeal have decreed that the suit land belongs to the Plaintiff.

11. In his submissions, the Intended 2nd Defendant’s (Applicant) advocate submitted that under Order 1 Rule 10(2) of the Civil Procedure Rules, the court has unfettered discretion to add or strike out of proceedings a party; that the Applicant is a necessary party in these proceedings because it has a Certificate of Title in respect to the suit land and that the Applicant is entitled to a fair hearing.

12. Counsel submitted that the Applicant has never been a party in ELC. No. 167 of 2007 and in Civil Appeal No. 246 of 2013; that the allegation by the Plaintiff that the title held by the Applicant is a forgery is unfounded and that no conclusive investigations have been conducted on the issue of the authenticity of the Applicant’s title document.

13. The Plaintiff’s/Respondent’s counsel submitted that the current Applications are a guise by people claiming to have an interest in the suit land to frustrate the Plaintiff and that whereas the court has the discretion of joining a party to a suit, the party seeking to be enjoined in the suit must show that he is not joining just to muddle the issues.

14. Counsel submitted that the issue of ownership of the suit property has been litigated upon in Nairobi ELC. No. 167 of 2007 and in Nairobi Civil Appeal No. 246 of 2013; that the bona fides of the title by the proposed 2nd Defendant is very questionable and that its interests are not clearly identifiable.

15. This suit was commenced by the Plaint as against the Defendant by way of a Plaint dated 31st October, 2017.  In the Plaint, the Plaintiff sought for an order of eviction of the Defendant from Land Reference Number 7149/10.  Contemporaneously with the Plaint, the Plaintiff filed an Application in which it sought for a temporary order of injunction.  The Application by the Plaintiff dated 31st October, 2017 was premised on the ground, inter alia, that the Defendant has purported to be either the owner or to have the authority of the owner of the suit land and was sub-dividing and selling the suit property.

16. The Application was not opposed by the Defendant.  When the same came up for inter-partes hearing, the court allowed it, thus granting to the Plaintiff an injunction restraining the Defendant from trespassing, sub-diving, or in anyway interfering with the Plaintiff’s ownership and occupation of the suit property.

17. After getting the said injunctive orders as against the Defendant, the record shows that the Plaintiff filed another Application dated 19th December, 2017 in which it sought for the following orders:

“2.  That this court be pleased to issue such orders as may be necessary to protect and preserve the said property including and not limited to orders requiring the Defendant and or parties claiming under him to pull down and demolish all those illegal structures put on the Plaintiff’s aforesaid property.

3. That alternatively, this court be pleased to issue an order allowing the Plaintiff to pull down and demolish these illegal structures put on his aforesaid property.

4. That the District Administration Police Commander, Athi River or Officer Commanding Mlolongo Police Station or the Officer in charge of Athi River Police Division be directed to supervise the compliance with these orders.”

18. The said Application was filed on 20th December, 2017 under a Certificate of Urgency.  When the matter was placed before the duty Judge on the same day, he allowed the Application in its entirety.  It would appear that the said Application was never served upon the said Defendant, and the resultant orders must have been issued in error. Indeed, the issuance of the orders of 20th December, 2017 for demolition of the structures standing on the suit land before the Application could be served on the Defendant is an error apparent on the face of the record.

19. The Plaintiff in this matter has not denied that the Interested Parties had earlier on filed Machakos ELC No. 155 of 2017 in which they are claiming the suit land by way of adverse possession. In the said suit, the Interested Parties obtained temporary orders of injunction restraining the Plaintiff herein from evicting them from the suit pending the hearing of the Application.  The said orders were issued on 10th April, 2017.

20. However, before the Interested Parties Application for injunction in ELC. No. 155 of 2017 could be heard inter-partes, the Plaintiff filed an Application dated 23rd August, 2017 in which it sought to have the orders of injunction set aside.  The Plaintiff’s Application was put before the duty Judge on 24th August, 2017, having been filed the previous day under a Certificate of Urgency.  On the said date, and before serving the Interested Parties’ advocate with the Application, the injunctive order that was subsisting in favour of the Interested Parties was discharged.

21. When the Interested Parties filed the current Application seeking for the review of the orders that were granted in this matter on 20th December, 2017, this court, out of abundant caution, visited the locus quo on 16th January, 2018.  While on site, the court noted that there were structures on the suit land. However, the court could not establish the proprietors of the said structures, which were both permanent and temporal in nature.

22. In view of the above chronology of events, and considering that the Interested Parties have lodged a claim in respect of the suit land, they should have been heard, both in this matter and in ELC No. 155 of 2017 before the order of eviction or demolition could issue. Having not been heard on their claim in this matter and in ELC. No. 155 of 2017, I find and hold that there is a sufficient reason and an error apparent on the face of record to entitle this court to set aside the orders of 20th December, 2017.  The issue of whether the Interested Parties are entitled to the suit land by way of adverse possession can only be determined after Machakos ELC No. 155 of 2017 has been heard and determined.

23. Considering that the order of the court of 20th December, 2017 had the effect of not only demolishing the structures which had been put up purportedly by the Defendant, but also the other structures on the land, the Interested Parties were condemned unheard.  Consequently, I allow their Application dated 5th January, 2018 according to the terms that I shall issue shortly.

24. The Application by the proposed 2nd Defendant is seeking for an order of joinder of the proposed Defendant and for injunctive orders.  According to the proposed 2nd Defendant, it owns the suit land.  The 2nd Defendant’s Managing Director has annexed a copy of Certificate of Title which shows that it was registered as the proprietor of the land on 3rd May, 2001.

25. The Plaintiff has argued that the Certificate of Title annexed on the proposed 2nd Defendant’s Application is a forgery and that in any event, this court and the Court of Appeal has since held that the suit land belongs to the Plaintiff.

26. The issue of whether the Certificate of Title that the proposed 2nd Defendant is holding is a forgery or not can only be determined after trial.  This court cannot at his stage conclusively state if indeed the said title is a forgery, moreso when the said copy of the title has been purportedly certified as being a true copy of the original by the Registrar of Lands.

27. On the issue of this court and the Court of Appeal having determined that the Plaintiff is the registered proprietor of the suit land, I note that neither the proposed 2nd Defendant nor the Interested Parties were parties to those suits.  Consequently, their claim must be heard and a decision thereof delivered by this court, notwithstanding the decision of the Court of Appeal.

28. Considering that the proposed 2nd Defendant has owned up to the fact that it is the one that put up the several permanent structures that are on the suit land, and in view of the assertion by the proposed 2nd Defendant that it is holding a Certificate of Title in respect to the suit land, I find that the proposed 2nd Defendant has shown a personal interest or stake in the matter. Consequently, it ought to be joined in this matter so as to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.

29. For those reasons, this court allows the Interested Parties’ Application dated 5th January, 2018 and the proposed 2nd Defendant’s  Application dated 14th February, 2018 in the following terms:

a. The orders of this court of 20th December, 2017 be and are hereby set aside.

b. The Intended 2nd Defendant be and is hereby enjoined in this suit.

c. The prevailing status quo in respect of L.R. No. 7149/10 (IR. No. 30601) be maintained pending the hearing and determination of this suit, meaning that neither the Plaintiff nor the Defendants and the Interested Parties, or any person acting under their instructions should sub-divide, sell, alienate, develop or deal with the suit property in a manner that is likely to change the status of the land pending the hearing and determination of the suit.

d. Each party to bear its own costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 27TH DAY OF JULY, 2018.

O.A. ANGOTE

JUDGE