Case ID:185736

Lawrence Mungai Ng’ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others; District Land Registrar, Nakuru (Interested Party) [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case E38 of 2021

Parties:

Lawrence Mungai Ng’ethe, Douglas Macharia Kamau & John Muthui Maina v Nyandarua Progressive Agencies Company Limited, Eliud Samuel Waweru, Peter Kinyanjui Ngugi, Jesse Kameria Ngwiri, Josephat Mureithi Muruthi & Peter Wanjohi Karania; District Land Registrar, Nakuru (Interested Party)

Date Delivered:

17 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Nakuru

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Lawrence Mungai Ng’ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others; District Land Registrar, Nakuru (Interested Party) [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

ELC CASE NO. E38 OF 2021

LAWRENCE MUNGAI NG’ETHE..................................................1

ST

PLAINTIFF

DOUGLAS MACHARIA KAMAU..................................................2

ND

PLAINTIFF

JOHN MUTHUI MAINA..................................................................3

RD

PLAINTIFF

VERSUS

NYANDARUA PROGRESSIVE AGENCIES

COMPANY LIMITED....................................................................1

ST

DEFENDANT

ELIUD SAMUEL WAWERU........................................................2

ND

DEFENDANT

PETER KINYANJUI NGUGI.......................................................3

RD

DEFENDANT

JESSE KAMERIA NGWIRI.........................................................4

TH

DEFENDANT

JOSEPHAT MUREITHI MURUTHI..........................................5

TH

DEFENDANT

PETER WANJOHI KARANIA....................................................6

TH

DEFENDANT

AND

DISTRICT LAND REGISTRAR, NAKURU......................INTERESTED PARTY

RULING

1.

This is a ruling in respect to the application dated

29/04/2021

and filed on

6/05/2021

which seeks the following orders:

a. …Spent

b. …Spent

c. That pending the hearing and determination of this suit, this honorable court be pleased to issue a temporary order of injunction restraining the defendants/respondents by themselves, agents and/or servants from trespassing, surveying, resurveying, sub-dividing, putting up beacons, transferring beacons, selling, invading, disposing, reallocating, fencing, demolishing fences, ploughing or in any manner whatsoever dealing with the plaintiffs/applicants parcels plot number 1425 and 355 respectively.

d. That a copy of the order extracted hereof be served upon the OCS, Solai police station for effective compliance.

e. That costs of this application be provided for.

2.

The application is supported by the affidavit sworn on

29/04/2021.

The grounds on the face of the application and the supporting affidavit are that the 1

st

plaintiff is the proprietor of plot number

1425

while the 2

nd

and 3

rd

plaintiffs are proprietors of plot number

355

; that the plaintiffs acquired the suit properties in the year

2004

from the 1

st

defendant and have been in possession since then; that in the year

1986

the directors of the 1

st

defendant were removed by shareholders and the provincial administration took over till the year

1997

; that there was an investigation by a probe committee known as the ‘

Omolo Committee’

that established that the directors had engaged in irregularities; that the Omolo committee decided to do a re-registration of all shareholders; that some members sued to prevent government interference; that the court directed elections be held; that on

25/06/1988

it was resolved in a company general meeting that

24

plots the directors had allocated themselves be reallocated to the members; that in

2003

it was resolved at a company general meeting that the land be sold to other members or shareholders and the plaintiffs purchased part of it; that the plaintiffs paid for land parcel no’s

1425

and

355

and were issued with share certificates and waited for issuance of title deeds; that the defendants have re-allocated their parcels of land to other people; that the third parties allocated the land have threatened the plaintiffs with eviction and unless they are restrained, the plaintiffs will not enjoy peaceful and quiet possession of the suit properties.

Response

3.

The 1

st

defendant through one of its directors

Eliud Samuel Maina Waweru

filed a replying affidavit sworn on

25/06/2021

in response to the application

.

He states that the plaintiffs did not acquire the suit properties legally and that they were issued with the suit properties illegally by the directors who had engaged in fraudulent and illegal activities; that the plaintiffs were allocated the suit properties without holding of a general meeting or without using the “

Omolo

” members register that was compiled by the probe committee; that the 1

st

defendant has been allocating to the shareholders parcels of land in accordance with the shares allocated to the shareholders as per the “

Omolo

” members register; that there are rifts within the 1

st

defendant; that the original allottee of plot number

1425

is

John Kihuiriria Kiara

and that the application should not be allowed as the suit properties were acquired illegally and fraudulently.

Submissions

4.

The plaintiffs/applicants filed their submissions dated

8/10/2021

on

4/10/2021

. There are no submissions on record filed by the defendants/respondents.

Determination

5.

Upon perusing the pleadings, the only issue for determination is whether an interim injunction should issue pending the hearing and determination of this suit.

6.

For the court to grant an interim order of injunction, it must first consider whether the applicant has established

a prima facie

case with a probability of success and whether the defendant would be likely to suffer loss that may not be capable of redress by way of damages. In the event that the court is in doubt, it will rule on a balance of probabilities. These are the conditions set down in the decision of the Court in the case of

Giella vs Cassman Brown & Company Limited (1973) E. A. 358.

7.

The Court Of Appeal in the case of in

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.

The plaintiffs/applicants allege that they are the proprietors of plots no.

1425

and

355

. To support their assertions, the 1

st

plaintiff has attached a certificate of ordinary shares and a payment receipt while the 2

nd

and 3

rd

plaintiffs have attached certificates of ordinary shares, receipts with regard to

plot No. 355

and a copy of agreement. The defendants on the other hand allege that the suit properties had been illegally issued to the plaintiffs and that with respect to

plot number 1425,

it was allotted to one John Kihuiriria. A copy of a title deed is attached for Land Parcel No.

Solai/ Arutani Block 1/1425

in the name

of John Kihiuria Kiara

. It has not been expressly stated by the respondents or by the applicants whether plot No.

1425

and land parcel no.

Solai/ Arutani Block 1/1425

refer to one and the same parcel of land. However, though the plaintiffs refer to the land by plot numbers and not by land registration reference substantive justice demands that this court takes note that the land reference

Solai/Arutani Block 1/1125 (NPA)

appearing on the title exhibited by the 2

nd

defendant correlates with one of the plot numbers given by the plaintiffs, that is

1125

. The appropriate conclusion would be that the plot numbers translated into the Land reference numbers.

9.

The plaintiff’s bought something. Was it mere air or substance? They have documents intimating that they bought some property. They allege that a meeting was held that resolved the lands they now claim be sold. It cannot be established at this stage whether that alleged meeting that authorized the sale to the plaintiffs, which is disputed by the defendants, took place.

10.

Having considered the affidavit evidence before me I am persuaded that the plaintiffs have established that they have a

prima facie

case against the defendants. However, the plaintiffs have not established that damages would not be an adequate remedy in the circumstances if the orders sought were not issued.

11.

I find that it is necessary in the disclosed circumstances of this case that the suit land be preserved and that can only be done by issuance of an injunction as prayed by the plaintiffs.

12.

Consequently I allow the application dated

29/4/21

and I order as follows:

a. That pending the hearing and determination of this suit, a temporary order of injunction is hereby issued restraining the defendants/respondents by themselves, agents and/or servants from trespassing, surveying, resurveying, sub-dividing, putting up beacons, transferring beacons, selling, invading, disposing, reallocating, fencing, demolishing fences, ploughing or in any manner whatsoever dealing with the plaintiffs/applicants parcels plot number Solai/Arutani Block 1/1425 (NPA) and Solai/Arutani Block 1/355 respectively. (NPA)

b. That costs of this application be shall be costs in the cause.

DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 17TH DAY OF NOVEMBER, 2021.

MWANGI NJOROGE

JUDGE, ELC, NAKURU.