This ruling is in respect of the Notice of Motion application dated 22nd February, 2024 brought by the Plaintiff/Applicant pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 Rule 1, 3(3), 4 and 8 Order 51, Rule 1 Civil Procedure Rules, 2010, articles 22, 25(c), 40, 48, 50(1), 60, 64, 159(2), 162(2)(b) and 259(1) of the Constitution 2010, Section 24 and 25 of the Land Registration Act, section 150 of the Land Act NO.6 of 2012 and sections 3 and 13 of the Environment and Land Act.
The application seeks for an order that the court be pleased to issue orders of injunction against the Defendant/Respondent by himself by agents, servants and/or employees from interfering with the parcel of land L.R. NO. KISUMU/KOGONY/4076 pending the hearing and final determination of the suit.
The application was supported by the averments in the Supporting Affidavit sworn by Joel Mola Aseda and the annextures thereto.
The application was opposed by the 1st Defendant vide the grounds of opposition dated 15th April, 2024. The case of the 1st Defendant is that the application is a non-starter and lacks merit and is res judicata vide ELC No.5 of 2023. That the Applicant is guilty of laches and does not qualify for the orders sought and that the application is an affront to the provisions of Order 40 and should therefore be dismissed.
The application was canvassed by way of written submissions. It was submitted on behalf of the Applicant that the Plaintiff’s right to property guaranteed under article 40 of the Constitution risks being violated by the Defendants/Respondents if the orders sought are not granted. That the Plaintiff bought the suit land and having obtained the land by completing to pay the purchase price, the Plaintiff obtained proprietary rights over the suit land.
That failure to secure the suit land and grant injunction orders will highly prejudice the Plaintiff as he has neither been given the agreed upon portion of land or the purchase price.
That the balance of convenience tilts in favour of granting the orders sought because if the orders sought are not granted, the property in dispute is in danger of being dealt with in a manner that will highly prejudice the Plaintiff.
The court was referred to a number of authorities including Giella -vs- Cassman Brown (1973)EA 358, Mrao Limited -vs- First American Bank Limited (2203)eKLR and Nguruman Limited -vs- Jan Bonde Nielsen & 2 Others (2014)eKLR.
On behalf of the 2nd and 3rd Defendants, it was submitted that the 2nd and 3rd Defendants sometime in May, 2021 bought land from the 1st Defendant and had the title deed legally processed. That currently, they might have their rights infringed if the temporary injunction is granted. That the Applicant would be better remedied by damages.
As a rejoinder to the submissions by the Respondents, the Applicant filed further submissions dated 4th September 2024 and submitted that the purpose of the injunction is to ensure the status quo is maintained pending hearing and determination of the suit. That the entire 3.25 hectares in KISUMU/KOGONY/4076, 7441 or 2442 should be protected to ensure there is no malicious disposition or transfer to a third party. Counsel relied on the case of Waithaka & 3 Others -vs- Kenya Urban Roads Authority & Another (Environment and Land Appeal E019of 2023 [2023]KEELC 22107 (KLR)(December 2023) Ruling, where it was held inter alia that the injunction sought is for preservation of the suit properties.
I have considered the application and the grounds advanced in opposition thereof. It is the Applicant’s case as contained in the Supporting Affidavit that it, vide a sale agreement, legally and lawfully acquired a portion of land measure 3.25 acres out of Land parcel NO. KISUMU/KOGONY/2670 as it was then from the 1st Defendant. The sale agreement was attached to the Supporting Affidavit. It was dated 6th March 1999, the property being sold was KOGONY Numbers 2670 and 2951 measuring approximately 3.25 acres at Kshs.1,543, 750/-.
It was the Plaintiff’s case that the sold parcel was later sub-divided to create inter alia the suit land herein.
It is clear that the suit land is yet to be registered in the name of the Plaintiff. No copy of register or certificate of official search was exhibited to demonstrate that the suit land NO. KOGONY/4076 exists. Perusal of the documents annexed to the Supporting Affidavit and particularly the Statutory Declaration in support of the caution indicates the land was sub-divided to produce parcel numbers 7441 and 7442.
This information was also contained in the Applicant’s further submissions where it was submitted that the entire 3.25 hectares in KISUMU/KOGONY/4076, 7441 or 7442 should be protected. The owners of these parcels are not disclosed in the application. The size of the portion of land claimed by the applicant is also not certain. While the agreement indicates it to be 3.25 acres, other pleadings and submissions filed by the applicant state that the land claimed measures 3.25 hectares.
An order of temporary injunction cannot issue in respect of parcels of land whose size and existence is not ascertained and whose ownership is not disclosed.
Regarding the acts of trespass complained of, the Applicant averred in the Supporting Affidavit that the parcel of land has been fenced and a billboard erected citing the proposed construction of floating beach apartments which project has been approved by the County Government, NEMA an National Construction Authority. No evidence of the acts of trespass was exhibited. Although a photograph of a billboard was attached to the Supporting Affidavit, there is no evidence that the same is on or in respect of the suit property.
I find that the grounds for grant of temporary injunction have not been demonstrated. The application is dismissed. Each party to bear own costs of the application.
Orders accordingly.
Ruling, dated and signed at Kisumu, read virtually this 20th of February, 2025 through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Maureen: Court Assistant.
Cliff Oduk for the Plaintiff/Applicant
Anyul for the 1st Defendant.
Shelmith h/b for Kounah for the 2nd & 3rd Defendants.