Bajoh v Haban & another (Environment & Land Case 103 of 2017) [2018] KEELC 4915 (KLR)

c. The Applicant then started running a Petrol Station business on the property and has been peacefully using the same until 1st April 2017 when the 1st Respondent invaded the same with surveyors from the 2nd Respondent and started placing beacons and fencing the land; d. The 1st Respondent has since occupied part of the land and is threatening to evict the plaintifi who stands to sufier irreparably unless the Orders sought herein are granted. 3. In a sworn Afidavit filed herein on 31st October 2017, the 1st Defendant Said Mohamed (Haban) avers that he applied for a Plot from the defunct Council in the 1990s and was allocated a commercial one measuring 0.294 hectares in 1999. In 2008, he sold 0.2 ha to the Plaintifi while he remained with about 0.094 ha. 4. The 1st Defendant however avers that he is aware the Plaintifi forged a copy of a plot-showing agreement purporting to show that he acquired 0.266 ha which is not the correct position as he only purchased 0.200 ha from the 1st Defendant. 5. The 2nd Defendant entered appearance but failed to file any response to the Plaintifi’s application. 6. I have considered the Application and the response thereto by the 1st Respondent. I have equally considered the written submissions and the authorities I was referred to by the Learned Advocates for the Plaintifi and the 1st Defendant. 7. In Giella –vs- Cassman Brown Company Ltd(1973)EA 358, the conditions for the grant of an interlocutory injunction were settled as follows:“ …First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the application might otherwise sufier irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.” 8. Has the Plaintifi made out a prima facie case with a probability of success? In Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others(2003) KLR 125, the Court of Appeal stated as follows in regard to what constitutes a prima facie case:“ …….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.” 9. In the matter before me, the Plaintifi avers that he purchased 0.200 hectares of land from the 1st Defendant. That fact is confirmed by the 1st Defendant who avers that after the sale, he remained with 0.0094 hectares. The Plaintifi avers that after the said purchase, the defunct County Council of Tana River allocated him more land making his portion a total of 0.366 hectares and thereafter issued him with an allotment thereof. He has annexed a copy of the said letter of allotment and the PDP marked as AMB-3 to the Supporting Afidavit. 10. I have studied the documents annexed by the Plaintifi in support of his claim. I did not however find any document showing either a request from the Plaintifi and/or an approval of the request to allocate the Plaintifi more land. As it were, the so-called allotment letter and the Part Development Plan (PDP) collectively mention the size of the Plot as 0.3666 Hectares but are silent on when the allocation was done. It was in any case not clear to me how the defunct Council could purport to allocate the Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4915/eng@2018-06-28 2

page 2 of 3

0.366 hectares which allocation appears to include the 0.200 hectares which the Plaintifi had initially bought from the 1st Defendant. 11. From the material placed before me, it would appear that the plaintifi is now claiming land in excess of what he had purchased. The Plaintifi himself concedes that when he purchased the portion measuring 0.200 hectares from the 1st Defendant, a portion measuring 0.094 hectares was left with the 1st Defendant. I did not see any claim by the plaintifi that the 1st Defendant is now claiming more than the portion that he was left with. As it is the Plaintifi cannot purport to acquire land in excess of what he purchased without a concomitant increment of the acreage on the ground. 12. It is accordingly not apparent to me that the Plaintifi has a right which has been infringed by the Respondents as to require the intervention of this court. In the result, I find no merit in the application dated 5th May 2017. The same is dismissed with costs to the1st Defendant. DATED, SIGNED AND DELIVERED AT MALINDI THIS 28TH DAY OF JUNE, 2018. J.O. OLOLA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4915/eng@2018-06-28 3

page 3 of 3