DAVIS OBAYI ASEMBO VS USHINDI P.A.G VIHIGA COUNTY AND LAND REGISTRAR VIHIGA AND 1 Others

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELCLC NO. 6 OF 2023

DAVIS OBBAYI ASEMBO…………………...……PLAINTIFF/APPLICANT

VERSUS

USHINDI P. A. G. VIHIGA COUNTY……1^ST DEFENDANT/RESPONDENT

LAND REGISTRAR……………………....2^ND DEFENDANT/RESPONDENT

HON. ATTORNEY GENERAL………..…3^RD DEFENDANT/RESPONDENT

RULING

1. This ruling is in respect of the Notice of Motion application dated 16^th January 2023 brought by the plaintiff pursuant to the provisions of Sections 1A, 3A Civil Procedure Act and Order 40 Rule 1(a) and (b) of the Civil Procedure Rules.  The application seeks for orders that pending hearing and determination of the suit the 1^st, 2^nd and 3^rd Respondents, their agents servants and or persons acting on their behalf be restrained from constructing, digging, fencing, selling, sub-dividing or dealing in any manner with property known as WEST BUNYORE/ESSABA/MBALE/856.  The application also seeks for an order that the Officer Commanding Vihiga Police County be ordered to supervise the orders for tranquility and that costs of the application be provided for.
2. The application was supported by the averments contained in the Supporting Affidavit of the plaintiff, Davis Obbayi Asembo, sworn on 16^th January 2023.
3. The application was opposed by the 1^st Respondent vide the averments contained in the Replying Affidavit sworn by Rev. Otundo Abednego on 2^nd March 2023.
4. The 2^nd and 3^rd Respondents did not respond to the application.
5. The grounds upon which the application is brought are that the applicant is the lawful proprietor and owner of land reference number WEST BUNYORE/ESSABA/MBALE/853 (the suit land herein) That on 23^rd October 2023 the 2^nd Respondent being the Vihiga County Land Registrar issued a report on boundary dispute determination between parcel of land known as WEST BUNYORE/ESSABA/MBALE/853, 854 and the suit land.  That the Land Registrar recommended that to avert endless disputes in the future, all parties in the dispute participate to see that the map is amended to reflect what is on the ground and how they have been in use and occupation of their parcels of land.  That the 1^st Defendant being the proprietor of Land Parcel known as WEST BUNYORE/ESSABA/MBALE/853 has now commenced construction, destruction, damage and has encroached on the plaintiff’s parcel of land by installing new boundary beacons without any valid reason.  That the applicant has a prima facie case with a probability of success and that the applicant might suffer irreparable injury which will not be adequately compensated by an award of damages.
6. The 1^st Respondent’s case as contained in the Replying Affidavit is that the 1^st Respondent is built on parcel of land known as WEST BUNYORE/ESSABA/MBALE/853 registered in the name of Atieli Ebole, now deceased.  That the land was purchased in the year 2001 and a temporary church structure, which is in use, constructed.  That in 2023 the Church embarked on constructing a new and modern sanctuary on the said land.  That the applicant is on a mission to frustrate completion of the Church construction.  That the suit land and land parcel No. WEST BUNYORE/ESSABA/853 are distinct and clearly demarcated with visible boundaries that have been in existence for several decades.  That the office of the Land Registrar advised the parties to engage and have the existing boundary adopted as a solution to the endless dispute.  That the building under construction is on parcel No. 853.  That the application does not satisfy the conditions for grant of injunctions as set out in Giella  vs  Cassman Brown (1973) EA 358.
7. It was submitted on behalf of the applicant that the 1^st Respondent has commenced construction thereby encroaching onto the suit land. That if the orders sought are not granted the applicant will lose his land to the 1^st Respondent church. Counsel relied on the provisions of article 40 of the Constitution and section 25 of the Land Registration Act and submitted that the title deed which had been exhibited is prima facie evidence of ownership of the suit land.
8. I have considered the application, the contents of the Supporting Affidavit, the Replying Affidavit and the oral submissions by Counsel for the parties.  The grounds for grant of temporary injunction are well defined in Order 40 Rules 1 and 2 of the Civil Procedure Rules. In addition in the case of Giella vs Cassman Brown Co. Ltd (1973) 358 relied upon by the applicant, the grounds for grant of temporary injunction are that the Applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience. A prima facie case was defined by the Court of Appeal in Mrao Ltd vs First American Bank Kenya Ltd & 2 Others [2003] eKLR as follows:

“ a prima facie case in a civil Application includes but is not confined to a genuine and arguable case. It is a case 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.”

1. In the present case, the plaintiff’s complaint is that the 1^st Respondent has commenced construction, destruction, damage and encroached on the applicant’s land by installing new boundary beacons without any valid reasons.  What emerge from the contents of the Supporting Affidavit is that the suit land and the 1^st Respondent’s land share a common boundary.  That in October 2023, the office of the Land Registrar determined a boundary dispute lodged by the plaintiff herein and a report was made.  While the applicant claims that according to the recommendations of the Land Registrar the dispute was not conclusively determined, the 1^st Respondent’s case is that the Land Registrar determined the dispute.
2. The report of the Land Registrar and Surveyor was attached to the Supporting Affidavit.  The surveyor’s report dated 23^rd October 2023 signed by one Dismas S. Mwisiahi for County Surveyor Vihiga County annexed to the Supporting Affidavit and marked “A2” indicated partly that:

• “We noted there was an existing boundary which was in contestation.
• The complainant admitted that when he bought the plot the existing boundary is what he was shown and that boundary had been disputed by the person who sold him.
• We used the Preliminary Index Diagram No. 8 of Essaba registration section which is for that area. Considering all aspects, we checked our measurements from all directions.  However, the measurements of the map and ground tallied on the Western side but when approaching the Eastern side, there were inconsistencies where a small section of parcels Essaba/856 and 854 had been encroached onto by owner of Essaba/853 bearing in mind of the existing boundary.  Thereafter all the parties on ground agreed that we use the map to mark the boundary.
• We corrected the anomaly at the Eastern side of the boundary and beacons marked and boundary features planted…”

1. From this report of the County Land Surveyor, it is clear that the boundary was conclusively determined at the request of the plaintiff.  The report of the Land Registrar of even date corroborates the report of the surveyor.  The conclusion of the Land Registrar’s report was that

“Taking into account the fact that there exists boundary features on most parts of the boundaries we checked, advised the parties to the dispute to adopt the existing boundaries except on part that has no boundary features and changes were made.  To avert endless disputes in future all parties to this dispute should participate to see that the map be amended to reflect what is on the ground and how they have been in use and occupation of their parcels of land”

These reports show that the boundary on the ground was determined and beacons marked and boundary features placed where they were not.  That the rest of the boundary was clear and in existence. What the parties were advised to do is to participate in amendment of the map to reflect the position on the ground.

1. Though the applicant exhibited photographs to show the ongoing construction, there is no evidence to show that the construction is being done beyond the beacons that were marked or the boundary features placed by the Land Registrar and his team.  There is no evidence that the construction is extended beyond the confines of land parcel No. 853.
2. I find that the grounds for grant of temporary injunctions have not been demonstrated. The application is dismissed. Costs to abide the main suit.

Orders accordingly.

Ruling, dated and signed at Kisumu, read virtually this 11^th day of April, 2024 through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Patricia- Court Assistant.

Wachakana for the Plaintiff/applicant.

Karani for the 1^st Defendant/Respondent.

No appearance for the 2^nd Defendant/Respondent.

No appearance for the 3^rd Defendant/Respondent.