Zainul Abdin Y. Dar v Majda Brek Karama & Mohamed Suleiman Ali [2017] KEELC 3689 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO. 186 OF 2016

ZAINUL ABDIN Y. DAR..............................................PLAINTIFF

=VERSUS=

1. MAJDA BREK KARAMA

2.  MOHAMED SULEIMAN ALI.............................DEFENDANTS

R U L I N G

1. In the Application dated 18th July, 2016, the Plaintiff is seeking for the following orders:-

(a) THAT the Defendants through their servants, agents or any other persons whosoever be restrained from entering upon, interfering with and/or having any dealing of adverse nature with the parcel of land situated in Takaungu Trading Center, Kilifi

(b) THAT, the costs of this application be provided for.

2. The Application is premised on the grounds that the 1st Defendant has threated to enter the suit premise; that the Defendants are wasting the suit properties and that the Defendant intend to permanently invade and remain in the Plaintiff’s land.

3. The Plaintiff has deponed that by virtue of being the legal representative of the estate of Yusufali Ademali, he is the bona fide owner of L.R No. 1513/389; that he has been in quiet possession of the said land and that in January 2015 the 1st Defendant showed  him a certificate of postal search dated 17th December 2014 allegedly claiming to be the owner of the land.

4. It is the Plaintiff’s case that he has been occupying the suit property since 1961 and that the Defendants intend to trespass on the suit land.

5. The 1st Defendant filed a notice of preliminary objection in which he averred that the Plaintiff has no cause of action as relates to L.R No. 1513/389 and that as relates L.R No. 1513/390, the claim founded on adverse possession is incompetent and ought to be struck out with costs.

6. In his Replying Affidavit, the 1st Defendant deponed that he is a bona fide purchaser for value without notice of any defect in the title LR. No. 1513/390 and that the facts of this case cannot support a claim for adverse possession.

7. As relates to LR. No. 1513/390, the 1st Defendant deponed that the suit is incompetent for contravening order 37 of the Civil Procedure Rules and that it is not true that the Plaintiff has been on the suit land since 1961.

8. The 2nd Respondent has supported the Plaintiff’s case by deponing that the 1st Respondent is an intruder on land known as LR No. 1513/390; that she is interfering with both parcels of land known as LR. No. 1513/390 and 1513/389; that it is the Plaintiff who has been in occupation of both properties for many years and that he is the one who holds a title for L.R No. 1513/390.

9. According to the 1st Defendant, an injunction order should issue.

10, In his Further Affidavit, the Plaintiff deponed that he has the consent of the other co-owners of the suit property to file the suit; that the 1st Defendant has confessed to unlawfully having taken over the suit property and that the 1st Defendant is a trespasser.

11. The 1st Defendant also filed a Supplementary Affidavit which I have considered. I have also considered the submissions that were filed by the parties.

12. In his Plaint  and Application, the Plaintiff has averred that he was  and still is the registered proprietor of parcel of land known as LR. No. 1513/389; that he has been in quiet possession of L.R No. 1513/390 and that the Defendants are laying claims over the two properties.

13. The Plaintiff's claim is that he is entitled to L.R No. 1513/390 by virtue of adverse possession and that he should be registered as the owner of the same. The certificate of title showing that the 2nd Defendant is the owner of plot 1513/390 has been exhibited on the Plaintiff’s Further Affidavit.

14. The Plaintiff has exhibited a certificate of ownership of LR. No. 1513/389 showing that the land was transferred to Yusuf Adamali Dar, Alibhai Adamali Dar, Aminah Adameli, Halimali Adamali Dar and Fakhmali Adamali Dar being heirs at law on 16th January, 1986.

15. The Plaintiff has deponed that he is the personal representative of one of the registered owners of LR. No 1513/389, Yusuf Adamali Dar. The Plaintiff has also annexed a purported consent from the other co-owners of the suit property authorizing him to institute this suit.

16. From the Deed Plans of plot numbers 1513/389 and 1513/390, the two plots abutt each other.

17. Although the title is in respect to  plot number 1513/390 is in the name of the 1st Defendant, who claims that he bought it from the 2nd Defendant vide an agreement of 6th December 2014, there is no evidence before court to show that the Defendants have always been in occupation of the suit property.

18. Considering that the Plaintiff's claim is based on the fact that he represents the interests of the owner of the registered owners of plot number 1513/389, and that he has utilized plot number 1513/390 for a period of 12 years, I find that the injunction order as prayed in the Application should issue.

19. I say to say so because the 2nd Defendant who purportedly sold the suit land to the 1st Defendant is supporting the Plaintiff’s claim, while the 1st Defendant’s interests run only until the year 2014, when he purportedly purchased the land.

20. Consequently, the 1st Defendant will not suffer any irreparable damages if the injunctive order is not granted. Rather, it is the Plaintiff who is likely to suffer irreparably if the orders are not granted.

21. For those reasons, I allow the Application dated 18th July, 2016 in the following terms:-

(a) The Defendant, through his servants, agents or any other person whosoever, be and is hereby restrained from constructing on/or continuing with construction of any structures in the parcel of land known as LR No’s 1513/389 and 1513/390 pending the hearing and determination of the suit.

(b) Each party to bear his own costs

Dated, signed and delivered in Malindi this3rdday of February,  2017.

O. A. Angote

Judge