Case ID:184665

Kanziwa Limited v Joseph Kipsabul Kipkisui & 4 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case E009 of 2021

Parties:

Kanziwa Limited v Joseph Kipsabul Kipkisui, Peter Getare Ndubi t/a Misget Company, Julius Omboto, Titus Ngathu t/a Gathu Group & Andrew Muia t/a Kingsgate Ventures

Date Delivered:

04 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Nakuru

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Kanziwa Limited v Joseph Kipsabul Kipkisui & 4 others [2021] eKLR

Court Division:

Environment and Land

County:

Nakuru

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAKURU

ELCC CASE NO. E009 OF 2021

KANZIWA LIMITED.........................................................................................PLAINTIFF

VERSUS

JOSEPH KIPSABUL KIPKISUI............................................................1

ST

DEFENDANT

PETER GETARE NDUBI T/A MISGET COMPANY..........................2

ND

DEFENDANT

JULIUS OMBOTO...................................................................................3

RD

DEFENDANT

TITUS NGATHU T/A GATHU GROUP.................................................4

TH

DEFENDANT

ANDREW MUIA T/A KINGSGATE VENTURES..................................5

th

DEFENDANT

RULING

The Application

1.

This ruling is in respect of the plaintiff/applicant’s Notice of Motion application dated

01/02/2021

which seeks the following orders:

(1) …spent

(2) …spent

(3) That the Officer Commanding Station (OCS) Njoro Police Station do oversee and enforce the implementation of this order, to forestall any violence or breach of the peace on the suit land.

(4) That pending the hearing and determination of this suit, the 1

st

, 2

nd

,3

rd

, 4

th

and 5

th

defendants by themselves, their servants, agents, employees, heirs, legal representatives, successors, assignees, or anyone claiming through or under any of them, be and are hereby restrained by order of temporary injunction from entering, remaining on, selling, offering or advertising for sale, alienating, disposing, wasting or in any other way whatsoever interfering with or with the plaintiff’s quiet possession of and from holding themselves out as the owners of the suit land, being all that land known as Titles LR No. 9726/2, LR 9726/3 and LR No. 9726/4 being subdivisions from the mother land parcel Title LR No. 9726, all situate in Njoro and registered in the name of the plaintiff Kanziwa Limited.

(5) That costs of this application be borne by the defendants.

2.

The application is supported by the affidavit sworn on

1/02/2021

by the plaintiff’s director. The grounds on the face of the application and supporting affidavit are that the plaintiff is the sole registered owner of land parcel No’s

LR No. 9726/2, 9726/3

and

9726/4

; that the suit land was previously compromised of a single mother title No.

LR No. 9726

; that in the year

2015

it was subdivided into three different parcels that were registered in the name of the plaintiff; that he has lived on the parcel of land since

1997

; that on

23/01/2021

the 2

nd

and 3

rd

defendants went to the suit property to survey it; that the 2

nd

defendant claimed to have bought the suit property from the 1

st

defendant whom he claimed to be the registered owner of the suit property; that he resisted their efforts to survey the land and reported the matter to Njoro Police Station; that the

4

th

and

5

th

defendants have unlawfully advertised the suit property for sale at

Ksh. 2,000,000/= (two million)

per acre; that the plaintiff has never sold or transferred the land to any of the defendants; that the

2

nd

and

3

rd

defendants have threatened to come back to the suit property and take possession and evict the plaintiff from the land.

The Response

3.

The 1

st

defendant filed a replying affidavit sworn on

17/05/2021

in response to the application. The plaintiff through its director then filed a supplementary affidavit sworn by David Kahumbu on

24/06/2021

.

Submissions

4.

The 1

st

defendant filed his submissions on

18/10/2021

. The plaintiff filed its submissions on

2/11/2021

. Upon perusal of the file, there are no submissions filed on behalf of the 2

nd

, 3

rd

, 4

th

and 5

th

defendants.

Determination.

5.

Upon perusal of the pleadings, the only issue for determination is whether the court should grant a temporary injunction restraining the defendants from dealing in any way with land Parcel No’s

LR No. 9726/2, LR No. 9726/3

and

LR No. 9726/4

pending the hearing and determination of this suit.

6.

For an injunction to be issued, the applicant must establish the conditions set out in the case of

Giella vs Cassman Brown & Company Limited (1973) EA 358

where the court stated as follows:

"First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."

7.

The court in the case of

Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] eKLR

defined a

prima facie

case to be:

“... a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter... [it] is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”

8.

In the case of

Habib Bank AG Zurich vs. Eugene Marion Yakub Civil Application Number Nairobi 43 of 1982

(unreported), Madan, Law and Potter JJA. held that:

“Probability of success means the court is only to gauge the strength of the plaintiffs case and not to adjudge the main suit at the stage since proof is only required at the hearing stage.”

9.

From the material placed before the court, the plaintiff alleges to be the registered owner of the suit properties pursuant to certificate of titles that were issued on

14/07/2015.

The 1

st

defendant alleges to be the registered owner of the mother title LR No.

9726

which mother title was, according to the plaintiff, subdivided and resulted in land parcel No’s

LR No. 9726/2, LR No. 9726/3 and LR No. 9726/4

which are the suit properties herein. The 1

st

defendant did not attach any evidence to that effect; no certificate of title is annexed to his replying affidavit.

10.

As the registered owner, the plaintiff is entitled to the rights, privileges and the benefits under

Section 24

of the

Land Registration Act

.

Section 26

of the same

Act

obligates the court to accept the plaintiff’s certificate of title as conclusive evidence of ownership unless fraud or misrepresentation is proved or where the certificate of title had been acquired illegally or unprocedurally. This is provided for under

Section 26 (1) (a)

and

(b)

of the

Land Registration Act

. It is therefore my opinion that the plaintiff has established a

prima facie

case with a probability of success.

11.

On whether or not the plaintiff will suffer irreparable loss that cannot be compensated by an award of damages if the application is not allowed, I have some doubt. However, where in doubt this court is entitled to apply the balance of convenience test.

12.

It is this court’s opinion that since interlocutory injunctions are meant to preserve the suit property pending the hearing and determination of the suit, the balance of convenience lies in granting the order of temporary injunction sought.

13.

Consequently I allow the notice of motion application dated

1/2/2021

as prayed in

prayers no 3

and

4

thereof. The costs of the application shall be in the cause.

DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 4

TH

DAY OF NOVEMBER, 2021.

MWANGI NJOROGE

JUDGE, ELC, NAKURU.