Case ID:185252

Moboko Shembekho Limited v Robert Kiptalam & 2 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case E43 of 2021

Parties:

Moboko Shembekho Limited v Robert Kiptalam, Benjamin Kipkech Kipkulei & Chief Land Registrar

Date Delivered:

10 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Nakuru

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Moboko Shembekho Limited v Robert Kiptalam & 2 others [2021] eKLR

Court Division:

Environment and Land

County:

Nakuru

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

LAND CASE NO. E43 OF 2021

MOBOKO SHEMBEKHO LIMITED..............................................................PLAINTIFF

VERSUS

ROBERT KIPTALAM............................................................................1

ST

DEFENDANT

BENJAMIN KIPKECH KIPKULEI.....................................................2

ND

DEFENDANT

CHIEF LAND REGISTRAR..................................................................3

RD

DEFENDANT

RULING

1. The instant suit was filed on

24/5/2021

. There were initially two related suits in respect of the subject matter herein, that is, this suit and

ELC 44 of 2021

the latter which was withdrawn with no orders as to costs on

7/10/2021

. A notice of motion dated

24/5/2021

was filed with the plaint. The motion sought the following orders:

a. This application be certified urgent and service of the same dispensed with in the first instance.

b. Pending the

inter partes

hearing and determination of this application, an order of injunction be issued restraining the Defendants whether by themselves, agents, servants or anyone acting on their authority howsoever from trespassing onto, remaining onto, invading, damaging, developing, cultivating, alienating, transferring any interest and/or in any manner whatsoever dealing with all the suit properties known as Land Reference Numbers 20591/16 and 20591/79 situated at Naivasha within Nakuru County in the Republic of Kenya, which order shall be enforced by the Officer Commanding, Kongoni Police Station.

c. Pending the

inter partes

hearing and determination of this application, an order of injunction be issued restraining the Defendants whether by themselves, agents, servants or anyone acting on their authority howsoever from trespassing onto, remaining onto, invading, damaging, developing, transferring any interest and/or in any manner whatsoever dealing with all the suit properties known as Land Reference Numbers 20591/16 and 20591/79 situated at Naivasha within Nakuru County in the Republic of Kenya, which order shall be enforced by the Officer Commanding, Kongoni Police Station.

d. Costs of the application be provided.

2. The motion was scheduled for hearing on

9/6/2021,

but soon after its filing the 2

nd

defendant filed an application dated

3/6/2021

seeking a raft of orders among them being the order that his notice of motion be heard together with the plaintiff’s application. I will replicate the orders the 2

nd

defendant sought as herein under:

1. Spent.

2. This application be heard together with the Plaintiff’s application on the 9/06/2021

3. An interim injunction do issue against the Plaintiff and its agents from entering, taking possession and or interfering with the 2

nd

Defendant’s occupation, use and management of LR. No. 20591/16 and LR No. 20591/79 pending the hearing and determination of this application.

4. An inhibition do issue forbidding the registration of any dealings in reference to properties LR. N. 20591/79 and LR No. 20591/16 pending the hearing and determination of this suit.

5. An injunction do issue against the Plaintiff and its agents from entering, taking possession and or interfering with the 2

nd

Defendant’s occupation, use and management of LR. No. 20591/79 and LR. No. 20591/16 pending the hearing and determination of the suit.

6. The Naivasha Sub County Commander do assist in enforcement of the orders herein.

7. The costs of this application be in the cause.

3. It is clear that the defendant’s application was made in response to the application filed by the plaintiff, and not surprisingly, on

7/10/2021

it was agreed by consent of the parties that the application dated

3/6/2021

be deemed as the response to the application dated

24/5/2021

in

ELC 43/21.

The further affidavit of the plaintiff was deemed the further affidavit in the application dated

24/5/2021.

4. Separate Responses to the applications were not excluded. Consequently, the 2

nd

defendant filed his replying affidavit in response to the plaintiff’s application dated

24

th

May 2021

on

7

th

June 2021.

The plaintiff on his part filed the replying affidavit sworn on

8

th

June 2021

in response to the defendant’s application.

5. The 2

nd

defendant filed a supplementary affidavit in further support of his application on

17/9/2021.

On

12/10/2021

this court granted the plaintiff right to respond to that supplementary affidavit and so the plaintiff filed its further affidavit in the matter on

21/10/2021.

6. The court in the course of the proceedings ordered that the Deputy Registrar do ascertain the developments on the suit properties and that she be accompanied by the District Land Registrar who would point out the various parcels. The Deputy Registrar was to file a report within

7 days

of the site visit and a perusal of the court record shows that the said report was filed on

8/11/2021.

7. Vide an application dated

17

th

September 2021

the

Agricultural Development Corporation

(herein after “

ADC

”) was joined to the suit as an interested party on

22/9/2021.

8. The 2

nd

defendant filed submissions on his application on

1/10/2021

. The plaintiff filed its submissions on

6

th

October 2021

.

9. That is the most concise summary that can be given of the progress so far of this highly contentious matter.

10. The application dated

24/5/2021

by the plaintiff seeks to injunct the defendants from dealing with the suit properties while the application dated

3/6/2021

seeks similar orders of injunction against the plaintiff.

11. At the heart of the suit and the two applications before me are the twin issues of ownership and possession of the suit land.

12. However the immediate issues that arise from the two applications before me are as follows:

a. Is it the plaintiff or the 2

nd

defendant who is in possession of the suit land and who among them should be injuncted from interfering with the suit land?

b. Who should bear the costs of the applications?

13. Regarding the first issue, the claim of the plaintiff as is evident from its affidavits is that it is the registered owner of the suit lands

LR Nos 20591/16

and

LR no 20591/79

(hereinafter “

the suit lands

” or “

the suit property

”, having purchased them in

2020

from their previous owners

Wilson

Kigutu Macharia

and

David Kimani

respectively for Ksh 22,000,000/= and Kshs 15,000,000/= respectively. The plaintiff claims that it took vacant possession upon purchase and enjoyed quiet possession thereof until

May 2021

when the 1

st

and 2

nd

defendants invaded the suit lands violently and commenced some unsuccessful attempts to evict the plaintiff therefrom thus threatening the safety of the plaintiff’s employees hence the suit for an injunction against the alleged acts of the defendants’ trespass. In his application, the plaintiff shows apprehension that the defendants would continue with the attempts to evict it. It exhibits official searches dated as late as

24

th

May 2021

to demonstrate that it is the proprietor of the suit land. It avers that it has demonstrated a

prima facie

case against the defendants.

14. The 2

nd

defendant’s evidence in support of his application for injunction against the plaintiff is contained in the affidavits he filed. The 2

nd

defendant’s claims are that he is the registered proprietor of the suit lands. He states that his titles are first in time and are a direct descendant of the mother title held by the ADC. He alleges that the plaintiff’s titles have no root in the mother title owned by ADC and that they are patently illegal as they lack supporting documents. He alleges that by the time the plaintiff was securing the titles to the suit land he was already the registered proprietor and in occupation thereof. He alleged that he was then in the process of preparation for a planting season.

15. Both parties claim that they would suffer loss if the orders sought in their respective applications were not granted.

16. The plaintiff has his plaint and the 2

nd

defendant has his counterclaim. Each therefore has their respective claim regarding the suit land since it is trite law that the counterclaim is a separate suit by itself.

17. I must first consider which of the contestants herein has a

prima facie

case against the other.

18. The plaintiff has annexed copies of its certificates of title to the suit lands registered in its name on

3/2/2020

and

14/12/2020

respectively.

19. The copies he exhibits appear to show that ADC was the original owner of plot number

20591/16

before it transferred to one Davit A Kibiwot; the latter appears to have transferred the same to one

Kigutu Macharia

who later transferred it to the plaintiff. The copies also appear to show that

David Kimani Gicharu

was the original owner of plot number

20591/79

before he transferred to the plaintiff.

20. On his part the 2

nd

defendant claims that he in the year

2000

acquired plot number

20591/16

and

20591/79

from Chemusian Company Ltd and Simba Posho Mills respectively. Simba Posho Mills are said to be the allottees of the suit land, having been so allotted the land by the ADC. However it was not until

2011

, according to the 2

nd

defendant, that the plot number

20591/79

was demarcated and formally transferred to him. He claims that he took possession of the two parcels and secured them with an electric fence, and that he has been carrying on farming activities on the lands until May

2021

when the agents of the plaintiff invaded the said parcels, destroyed the electric fence and purported to subdivide the suit property among themselves. He stated that they have ploughed parts of the properties in readiness for sowing crops thereon. His certificate of title in respect of

LR 20591/16

shows Chemusian Company Ltd as the previous owner and that it was allotted the land by the government on

18/1/99

and who apparently transferred the land to the 2

nd

defendant on

8/8/2014.

However, his copy of the certificate of title to plot no

20591/79

does not evince who the earlier owner thereof was. However copies of various correspondences and a transfer for each plot were attached to the application. Copies of pay in slips to the Commissioner of Domestic Taxes and a Kenya Commercial Bank cash payment receipt are also attached to the application. Photographs of the fence allegedly vandalized by the plaintiff’s agents are also exhibited.

21. However in another twist the plaintiff attached to its replying affidavit to the application dated

3/6/2021

copies of certified copies of the searches dated

24

th

May 2021

showing that it was the registered proprietor of the suit lands by then.

22. The Deputy Registrar’s report was adopted by this court as part of the record. Its findings are that a Mr. David Kinuthia had cleared

parcel no 20591/16

and maintained his presence on it after fencing it. The report also indicated that the barbed wire fence erected by David Kinuthia had been uprooted. The report also indicated that Mr David Kinuthia had maintained his presence over parcel no

25091/79.

The input of the local administration officials was crucial in the report by the Deputy Registrar. The local administrative officials indicated that the plaintiff is in possession of both parcels through the said David Kinuthia who describes himself in affidavits on record as the plaintiff’s farm manager.

23. In a rejoinder by way of a supplementary affidavit filed on

17/9/2021

the 2

nd

defendant claimed that the report filed by the Deputy Registrar ignored his electric fence which had been pulled down. He also drew the attention of the court to an online video and stated that the plaintiff had obtained possession by force. He argues that the deputy registrar’s report appears to confer possession to the plaintiff.

24. However, in a further affidavit filed on

21/10/2021

David Kinuthia claimed that he had been in possession of the suit land for a period of

20

years and that the 2

nd

defendant has never visited the suit properties. He scoffs at the allegation that the 2

nd

defendant had erected an electric fence to the properties and avers that there is no power grid in the area. He claimed that he worked for Mr. David Kimani Gicharu whom he knew as the proprietor thereof and that supervised farming activities thereon on his behalf, and that he fenced off the land in

2002

; after the said David sold the land to the plaintiff the plaintiff retained the deponent as its manager on the suit land, that is parcel no

25091/79.

He maintained that goons sent by the 2

nd

defendant destroyed the fence on

18/5/2021

and that he reported the incident to the police, the area senior chief and assistant chief who all visited the land on the same date whereupon the attackers fled the scene. He also stated that he had managed the agricultural activities on the adjacent portion of land that is

25091/16

at the instructions of a former owner, Mr. Achikwa who sold the farm later on to a Mr. Wilson Kigutu who subsequently sold it to the plaintiff. Upon purchase, Mr. Kinuthia states, he took vacant possession of the parcel on behalf of the plaintiff and he continued managing agricultural activities thereon on its behalf until

18

th

May 2021

when the goons allegedly sent by the 2

nd

defendant invaded the property.

25. As stated in the celebrated decision of

Giella vs Cassman 1973 EA 358,

the conditions for the grant of an interim injunction are that the applicant must establish that they have a

prima facie

case with a probability of success and that they would suffer loss that would not be capable of compensation by damages if the orders are not granted; lastly, if the court is in doubt, it may rule on the application on a balance of convenience.

26. Many of the factual allegations in the documents so far filed will have to be established by way of evidence at the main hearing of the suit. The only task facing this court at present with regard to the applications at hand is to establish who has established that they deserve orders of temporary injunction. This court is not expected to hold a mini-trial at this stage in order to determine the issues before it. However it was quite necessary to set out in detail the respective cases of the parties, however lengthy and tedious that appears to be, in order to give a clear perspective of this suit.

27. Having examined the documents filed by the parties in this case and the report filed by the Deputy Registrar, I am persuaded that the plaintiff has some documents of title and is in possession. Thus it has established that it has a

prima facie

case against the defendants.

28. As regards loss, I am not convinced that failure to grant the orders sought may occasion the plaintiff loss that can not be compensated for by way of damages; however it is vital to preserve the land subject matter of this suit.

29. In the interests of justice for all parties, I hereby dispose of both applications dated

24/4/2021

and

3/6/2021

by ordering that the

status quo

prevailing as at the present moment which, is that the plaintiff is in possession, shall be maintained by all parties pending the hearing and determination of the main suit. No party shall however subdivide or charge or waste or dispose of the suit land until the final determination of the instant suit.

30 . The parties shall ensure that they have complied with the rules. The plaintiff shall file and serve all the documents necessary for his case within

14 days

and the defendants shall respond within

14 days

of service. The suit shall be mentioned on

7/12/2021

to fix a hearing date.

It is so ordered.

DATED, SIGNED AND ISSUED AT NAKURU VIA ELECTRONIC MAIL ON THIS 10TH DAY OF NOVEMBER, 2021.

MWANGI NJOROGE

JUDGE, ELC, NAKURU