[NOTICE OF MOTION DATED 8TH JANUARY 2024]
1. The Petitioner moved the court vide a notice of motion dated 8th January 2024 seeking the following orders:
a. “Spent.
b. Pending inter partes hearing of this application, this Honourable court be pleased to issue a temporary injunction restraining the Respondents either by themselves, their servants, agents, or any other persons claiming through them for evicting /demolishing the structures locate on the suit property, sub dividing, selling, trespassing upon, attacking or in any other way interfering with the quiet possession of the occupants of all the parcel of land known as Plot Number MN/III/553-Original Number MN/III/284/5 situate in Kanamai Kwa Kadzengo area in Mtwapa pending the hearing and determination of this Application.
c. Pending inter partes hearing of this application, this Honourable court be pleased to issue a temporary injunction restraining the Respondents either by themselves, their servants, agents, or any other persons claiming through them for evicting /demolishing the structures locate on the suit property, sub dividing, selling, trespassing upon, attacking or in any other way interfering with the quiet possession of the occupants of all the parcel of land known as Plot Number MN/III/553-Original Number MN/III/284/5 situate in Kanamai Kwa Kadzengo area in Mtwapa pending the hearing and determination of the Main Petition.
d. The Honourable court direct the OCS Kijipwa Police Station, OCS Mtwapa Police Station and Kilifi County Police Commander to enforce the orders issued and ensure compliance.
e. An order for inhibition be issued inhibiting any further dealings in respect to land parcel number MN/III/553-Original Number MN/III/284/5 situate in Kanamai Kwa Kadzengo area in Mtwapa pending the hearing and determination of the Main Petition.
f. Any other orders that this Honourable court may deem fit to grant.
g. The costs of this application be provided for.”
The application is premised on the thirty (30) grounds on its face, and supported by the supporting and supplementary affidavits of ETORE JOHN AKARAN, petitioner, sworn on 8th January 2024 and 29th April 2024. It is the petitioner’s case inter alia that:
i. THAT the application has been brought on behalf of the occupants of a parcel of land known as MN/III/553-Original Number MN/III/284/5, the suit property, who have always resided and constructed permanent houses on it, for long.
ii. THAT the 1st respondent hired goons to terrorize the said residents and alleged that he has caused the arrest of some residents which was done with the aim of depriving the occupants of the suit property.
iii. THAT the 1st respondent with the help of various land officials fraudulently facilitated the transfer of the title of the suit property in favour of the 1st respondent, which fact the residents found out through postal search after being frustrated by the land officials for six months.
iv. THAT the senior registrar of titles had in a letter addressed to the firm of Gikandi & Co. Advocates, dated 6th October 2011 stated that the suit property does not exist.
v. THAT allegedly the Ministry of Lands had formed a taskforce who conducted investigations and made a report which was forwarded to the said Ministry, and the Land Registrar was to adhere to the recommendations so as to end the conflict between the occupants and the 1st respondent. The taskforce directed that the suit property should be re sub-divided to reinstate the evicted families and the Al’Amin, but the Land registrar instead allocated the whole suit property to the Al’ Amin family.
vi. THAT various parties have filed suits against the 1st respondent seeking permanent injunctions and adverse possession of the suit property.
vii. THAT the hired goons were sent to terrorize the residents on 24th December 2023, 30th December 2023, and 6th January 2024, vandalizing their property, demolished their houses, demanding that they vacate despite the residents’ pleadings. That on the 7th January 2024, the leader of the residents, one Alpha Kiti Chonga, was arrested, and was to be arraigned in court on 8th January 2024.
viii. THAT the residents’ efforts in seeking assistance of police officers to prevent further loss of life and property has been an exercise in futility.
ix. That the petitioner cannot claim adverse possession as there is an existing valid letter of allotment;
x. That the saving and transitional provisions under the Community Land Act to wit section 46 (1) and (2) have inferred that the residents’ interest had accrued and subsequently cemented by the findings of the aforementioned taskforce;
xi. That the residents came to know of the alleged fraud by the 1st respondents when his hired goons forcibly entered into the suit property alleging that the same belonged to the 1st respondent;
xii. That as at 6th October 2011 the suit property was unregistered therefore the registration of the suit property in the name of the late Teba Binti Mohamed was suspicious;
xiii. That there is no time limitation for filing a constitutional petition and that the residents were forced to approach this court after they were being evicted sometime in late 2023;
xiv. That the Commission of Administrative Justice is not statutorily empowered to hear claims and hence the doctrine of exhaustion was not applicable as it would be insufficient in serving the values enshrined in the constitution;
xv. That a rectification of the register would not be fruitful as the land registrar actively participated in the fraud;
xvi. That in the taskforce report afore mentioned, had held that the 1st respondent has a habit of involving police officers to settle personal scores, and therefore, the said hired goon demolished the houses of certain residents on 30th December 2024.
2. The interested party responded to the application through the replying affidavit of MARK C. NDIEMA, Regional Manager, Lower Coast region, sworn on 17th January 2024, inter alia protesting its joinder, in view of its constitutional mandate to conduct investigations and institute civil proceedings for recoveries.
3. The Attorney General opposed the application through the eighteen (18) grounds of opposition dated 9th April 2024 inter alia that the claim is an adverse possession guised as a petition; that the petitioner is guilty of laches as the suit property was brought twelve months after the petitioner had discovered the fraud; the suit is fatally defective, an abuse of the court process and that the court lacks jurisdiction to determine the petition; that the petitioner has not exhausted alternative remedies.
4. The 1st respondent opposed the application through the replying affidavit of Abdulrahman Mohamed Al Amin, sworn on the 14th May 2024, inter alia deposing that he was the one in occupation of the suit property and the petitioners have never been it; that the person who was arrested and charged for interfering with the land was Rodgers Nyanji, who is not among those in the list of authority; that the suit property was validly transferred to Teba Binti Mohamed on 23rd December 2011, and he is the administrator of her estate; that the recommendations relied upon by the petitioner were overturned in Mombasa ELC No. 10 of 2018, Gilbert Mwaganda versus National Land Commission that was dismissed; that the 1st respondent had filed ELC No. E033 of 2023, against the Land Adjudication and Settlement Scheme, County Government of Kilifi and National Land Commission and an order was issued for the removal of the illegal occupants from the suit property; that the order directed the OCPD and OCS to ensure compliance and it was the police who lawfully removed the illegal occupants from the suit property, and no goons were sent as alleged; that those who defied the orders were arrested and charged; that no loss of lives or destruction of properties has occurred as the status quo order issued in ELC No. E033 of 2023 is still in force.
5. The court issued directions on filing and exchanging submissions on the 11th April 2024 and 14th May 2024.
6. The learned counsel for the petitioner and 2nd to 8th respondents filed theirs dated 1st May 2024 and 10th May 2024 respectively.
7. The following issues are for determination of this application
i. Whether the petitioner has met the threshold for issuance of injunction order sought at this interlocutory stage.
ii. Whether the application herein and that dated 14th April 2023 in ELC E033 OF 2023 are similar.
iii. Who bears the costs?
4. The court has carefully considered the grounds on the notice of motion and opposition, affidavit evidence, submissions by the learned counsel and come to the following determinations:
a. There is an emerging pertinent issue which the 1st respondent had raised in his replying affidavit sworn on 14th May 2024, which the petitioner had not replied to by the time of writing this ruling. The said emerging issue is that this petition is allegedly similar to ELCC PETITION 10 of 2018, which had been dismissed by Justice Matheka on 25th October 2023, and further that the 1st respondent has also filed ELCC E033 of 2023 which is still active in court. In petition 10 of 2018, the suit property was the same as the suit property herein. That petition was dismissed for offending the doctrine of exhaustion. In the other suit of E033 of 2023, the suit property is also the subject matter therein, and has a pending ruling before Justice Naikuni, which will be delivered on 24th June 2024. From the order annexed as ‘AMA6’, the nature of the orders of 6th July 2023 that the police had been directed to enforce is clear.
b. It is very fortunate that records are now digital and I have perused form the Case Tracking System that the application dated 14th April 2023 which is subject matter of the pending ruling, had also sought an injunction against some of the co-respondents herein. The 1st respondent herein is part of the plaintiffs in ELCC E033 of 2023, and there is a real danger of the courts dealing with the two matters may arrive at conflicting decisions. To avoid that, one option is for the court to await the outcome of ELC No. E033 of 2023 as it was filed before this petition. One may argue that this is an application in a petition and ought not await the ruling of the said application in ELCC E033 of 2023 as the parties, issues and prayers are different, but the fact remains that in both the applications, the orders sought are in rem and not in personam. They both request the courts to restrain any party from conducting any activities on the suit property.
c. The general rule on costs is that it follow the event unless there is a good reason to depart from the rule. In this instant, though I find no merit in the application, the justice in the matter will best be served with an order that costs abide the outcome of the petition.
5. The from the above conclusions, the orders that commends themselves for issuance are as follows:
a. That the notice of motion dated 8th January 2024 is without merit, and is dismissed.
b. Costs to be abide the outcome of the petition.
Orders accordingly.
1. The Petitioner moved the court vide a notice of motion dated 8th January 2024 seeking the following orders:
a. “Spent.
b. Pending inter partes hearing of this application, this Honourable court be pleased to issue a temporary injunction restraining the Respondents either by themselves, their servants, agents, or any other persons claiming through them for evicting /demolishing the structures locate on the suit property, sub dividing, selling, trespassing upon, attacking or in any other way interfering with the quiet possession of the occupants of all the parcel of land known as Plot Number MN/III/553-Original Number MN/III/284/5 situate in Kanamai Kwa Kadzengo area in Mtwapa pending the hearing and determination of this Application.
c. Pending inter partes hearing of this application, this Honourable court be pleased to issue a temporary injunction restraining the Respondents either by themselves, their servants, agents, or any other persons claiming through them for evicting /demolishing the structures locate on the suit property, sub dividing, selling, trespassing upon, attacking or in any other way interfering with the quiet possession of the occupants of all the parcel of land known as Plot Number MN/III/553-Original Number MN/III/284/5 situate in Kanamai Kwa Kadzengo area in Mtwapa pending the hearing and determination of the Main Petition.
d. The Honourable court direct the OCS Kijipwa Police Station, OCS Mtwapa Police Station and Kilifi County Police Commander to enforce the orders issued and ensure compliance.
e. An order for inhibition be issued inhibiting any further dealings in respect to land parcel number MN/III/553-Original Number MN/III/284/5 situate in Kanamai Kwa Kadzengo area in Mtwapa pending the hearing and determination of the Main Petition.
f. Any other orders that this Honourable court may deem fit to grant.
g. The costs of this application be provided for.”
The application is premised on the thirty (30) grounds on its face, and supported by the supporting and supplementary affidavits of ETORE JOHN AKARAN, petitioner, sworn on 8th January 2024 and 29th April 2024. It is the petitioner’s case inter alia that:
i. THAT the application has been brought on behalf of the occupants of a parcel of land known as MN/III/553-Original Number MN/III/284/5, the suit property, who have always resided and constructed permanent houses on it, for long.
ii. THAT the 1st respondent hired goons to terrorize the said residents and alleged that he has caused the arrest of some residents which was done with the aim of depriving the occupants of the suit property.
iii. THAT the 1st respondent with the help of various land officials fraudulently facilitated the transfer of the title of the suit property in favour of the 1st respondent, which fact the residents found out through postal search after being frustrated by the land officials for six months.
iv. THAT the senior registrar of titles had in a letter addressed to the firm of Gikandi & Co. Advocates, dated 6th October 2011 stated that the suit property does not exist.
v. THAT allegedly the Ministry of Lands had formed a taskforce who conducted investigations and made a report which was forwarded to the said Ministry, and the Land Registrar was to adhere to the recommendations so as to end the conflict between the occupants and the 1st respondent. The taskforce directed that the suit property should be re sub-divided to reinstate the evicted families and the Al’Amin, but the Land registrar instead allocated the whole suit property to the Al’ Amin family.
vi. THAT various parties have filed suits against the 1st respondent seeking permanent injunctions and adverse possession of the suit property.
vii. THAT the hired goons were sent to terrorize the residents on 24th December 2023, 30th December 2023, and 6th January 2024, vandalizing their property, demolished their houses, demanding that they vacate despite the residents’ pleadings. That on the 7th January 2024, the leader of the residents, one Alpha Kiti Chonga, was arrested, and was to be arraigned in court on 8th January 2024.
viii. THAT the residents’ efforts in seeking assistance of police officers to prevent further loss of life and property has been an exercise in futility.
ix. That the petitioner cannot claim adverse possession as there is an existing valid letter of allotment;
x. That the saving and transitional provisions under the Community Land Act to wit section 46 (1) and (2) have inferred that the residents’ interest had accrued and subsequently cemented by the findings of the aforementioned taskforce;
xi. That the residents came to know of the alleged fraud by the 1st respondents when his hired goons forcibly entered into the suit property alleging that the same belonged to the 1st respondent;
xii. That as at 6th October 2011 the suit property was unregistered therefore the registration of the suit property in the name of the late Teba Binti Mohamed was suspicious;
xiii. That there is no time limitation for filing a constitutional petition and that the residents were forced to approach this court after they were being evicted sometime in late 2023;
xiv. That the Commission of Administrative Justice is not statutorily empowered to hear claims and hence the doctrine of exhaustion was not applicable as it would be insufficient in serving the values enshrined in the constitution;
xv. That a rectification of the register would not be fruitful as the land registrar actively participated in the fraud;
xvi. That in the taskforce report afore mentioned, had held that the 1st respondent has a habit of involving police officers to settle personal scores, and therefore, the said hired goon demolished the houses of certain residents on 30th December 2024.
2. The interested party responded to the application through the replying affidavit of MARK C. NDIEMA, Regional Manager, Lower Coast region, sworn on 17th January 2024, inter alia protesting its joinder, in view of its constitutional mandate to conduct investigations and institute civil proceedings for recoveries.
3. The Attorney General opposed the application through the eighteen (18) grounds of opposition dated 9th April 2024 inter alia that the claim is an adverse possession guised as a petition; that the petitioner is guilty of laches as the suit property was brought twelve months after the petitioner had discovered the fraud; the suit is fatally defective, an abuse of the court process and that the court lacks jurisdiction to determine the petition; that the petitioner has not exhausted alternative remedies.
4. The 1st respondent opposed the application through the replying affidavit of Abdulrahman Mohamed Al Amin, sworn on the 14th May 2024, inter alia deposing that he was the one in occupation of the suit property and the petitioners have never been it; that the person who was arrested and charged for interfering with the land was Rodgers Nyanji, who is not among those in the list of authority; that the suit property was validly transferred to Teba Binti Mohamed on 23rd December 2011, and he is the administrator of her estate; that the recommendations relied upon by the petitioner were overturned in Mombasa ELC No. 10 of 2018, Gilbert Mwaganda versus National Land Commission that was dismissed; that the 1st respondent had filed ELC No. E033 of 2023, against the Land Adjudication and Settlement Scheme, County Government of Kilifi and National Land Commission and an order was issued for the removal of the illegal occupants from the suit property; that the order directed the OCPD and OCS to ensure compliance and it was the police who lawfully removed the illegal occupants from the suit property, and no goons were sent as alleged; that those who defied the orders were arrested and charged; that no loss of lives or destruction of properties has occurred as the status quo order issued in ELC No. E033 of 2023 is still in force.
5. The court issued directions on filing and exchanging submissions on the 11th April 2024 and 14th May 2024.
6. The learned counsel for the petitioner and 2nd to 8th respondents filed theirs dated 1st May 2024 and 10th May 2024 respectively.
7. The following issues are for determination of this application
i. Whether the petitioner has met the threshold for issuance of injunction order sought at this interlocutory stage.
ii. Whether the application herein and that dated 14th April 2023 in ELC E033 OF 2023 are similar.
iii. Who bears the costs?
4. The court has carefully considered the grounds on the notice of motion and opposition, affidavit evidence, submissions by the learned counsel and come to the following determinations:
a. There is an emerging pertinent issue which the 1st respondent had raised in his replying affidavit sworn on 14th May 2024, which the petitioner had not replied to by the time of writing this ruling. The said emerging issue is that this petition is allegedly similar to ELCC PETITION 10 of 2018, which had been dismissed by Justice Matheka on 25th October 2023, and further that the 1st respondent has also filed ELCC E033 of 2023 which is still active in court. In petition 10 of 2018, the suit property was the same as the suit property herein. That petition was dismissed for offending the doctrine of exhaustion. In the other suit of E033 of 2023, the suit property is also the subject matter therein, and has a pending ruling before Justice Naikuni, which will be delivered on 24th June 2024. From the order annexed as ‘AMA6’, the nature of the orders of 6th July 2023 that the police had been directed to enforce is clear.
b. It is very fortunate that records are now digital and I have perused form the Case Tracking System that the application dated 14th April 2023 which is subject matter of the pending ruling, had also sought an injunction against some of the co-respondents herein. The 1st respondent herein is part of the plaintiffs in ELCC E033 of 2023, and there is a real danger of the courts dealing with the two matters may arrive at conflicting decisions. To avoid that, one option is for the court to await the outcome of ELC No. E033 of 2023 as it was filed before this petition. One may argue that this is an application in a petition and ought not await the ruling of the said application in ELCC E033 of 2023 as the parties, issues and prayers are different, but the fact remains that in both the applications, the orders sought are in rem and not in personam. They both request the courts to restrain any party from conducting any activities on the suit property.
c. The general rule on costs is that it follow the event unless there is a good reason to depart from the rule. In this instant, though I find no merit in the application, the justice in the matter will best be served with an order that costs abide the outcome of the petition.
5. The from the above conclusions, the orders that commends themselves for issuance are as follows:
a. That the notice of motion dated 8th January 2024 is without merit, and is dismissed.
b. Costs to be abide the outcome of the petition.
Orders accordingly.