Khalid & 4 others v Hilali & 14 others (Environment & Land Petition 7 of 2020) [2022] KEELC 3812 (KLR)

ABDULRAHMAN MOHAMED HILALI .................................... 1ST RESPONDENT TAUHIDA MOHAMMED ............................................................ 2ND RESPONDENT MOHAMED ABDULRAHMAN MOHAMED ........................... 3RD RESPONDENT YAHYA AHMED SHEE (ALIAS) BASODE) ................................ 4TH RESPONDENT ABDULQADIR BARKALE FAMAU (ALIAS DULA) ................ 5TH RESPONDENT BAILE MOHAMMED SOMOBWANA ........................................ 6TH RESPONDENT AHMED MOHAMED ................................................................... 7TH RESPONDENT MAHMOUD MOHAMMED ........................................................ 8TH RESPONDENT ABDALLA FARID FADHIL ......................................................... 9TH RESPONDENT MOHAMED ALI MAHADHI .................................................... 10TH RESPONDENT SALMA MOHAMED OMAR ..................................................... 11TH RESPONDENT JAMES KAMOTHO GACHARA ............................................... 12TH RESPONDENT THE COUNTY GOVERNMENT OF LAMU ........................... 13TH RESPONDENT THE NATIONAL LAND COMMISSION ................................ 14TH RESPONDENT THE HONOURABLE ATTORNEY GENERAL ...................... 15TH RESPONDENT RULING 1. By the notice of motion dated August 20, 2020, the five (5) petitioners herein pray for an order of injunction, prohibition and/or restriction to restrain the 1st to 14th respondents herein from trespassing, selling and/or carrying on any further activities or dealing in any manner with the property known as Mohamed Khalid Nyekombo family land being Lamu/Mokowe Old Town/824 to 866 located in Mokowe area of Lamu County. 2. The application which is supported by an afidavit sworn by the 1st petitioner – Bwanloo Mohamed Khalid is premised on the grounds: (i) That the petitioners are the lawful owners of the suit property having acquired the same legally some by way of sale agreements and others through inheritance; (ii) That the respondents have without the petitioners’ knowledge and or consent gone forward to allocate and/or process fraudulent titles to the suit parcels; (iii) That as a result of the respondents actions the petitioners have sufiered loss and damage; (iv) That unless the process of distribution, allocation, transfer of land and issuance of titles is stopped, the Petitioners will sufier irreparable loss; and (v) That in the interest of justice the honourable court ought to preserve the suit premises pending the hearing and determination of the main suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3812/eng@2022-05-12 2

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3. The 1st to 11th respondents are however opposed to the grant of the orders sought. In an application sworn on their behalf by the 1st respondent – Ahmed Mohamed and filed herein on January 27, 2021, the respondents aver that the petitioners have not demonstrated any tangible evidence of having purchased the subject properties. 4. The respondents assert that they are the legal owners of the disputed properties a fact which is well documented in the Land Registry as demonstrated by the title deeds issued to themselves. The respondents state that prior to the issuance of the said title deeds, they had occupied the suit property for many years and they were therefore justifiably issued with the titles. 5. The 1st to 11th respondents further deny that the 1st petitioners father lived on the suit property as stated by the petitioners. It is their case that the 1st petitioner had no capacity to sell any portion of the land and that if he did so the sale was illegal ab initio. The respondents further aver that the petitioners have not laid any foundation or demonstrated that there existed land belonging to the Mohamed Nyakembo family – and hence their claim herein is unfounded. 6. The 12th respondent – James Kamotho Gachara is equally opposed to the application. In his replying afidavit filed herein on January 26, 2021, the 12th respondent avers that the petitioners have come to court with unclean hands and have concealed vital information including the fact that the 3rd petitioner started claiming the land after the 12th respondent had purchased the same. The 12th respondent reported the matter to the County Commissioner’s Ofice whereupon the 3rd petitioner was ordered to stop dealing with the land. 7. The 12th respondent avers that after the resolution of the dispute, he tried to develop the property but he was stopped by the 1st and 2nd petitioners who apparently harboured intentions to resell the land to other unsuspecting buyers. 8. The 12th respondent further avers that there is no evidence that the suit land is family land and the Petitioners have not shown what prejudice they sufiered after the National Land Commission exercised its mandate to administer what was Government land. 9. I have carefully perused and considered the application and the responses thereto. I have similarly perused and considered the rival submissions and authorities placed before me by the learned advocates acting for the parties. 10. Thepetitioners herein pray for an order of injunction restraining the respondents from dealing with a parcel of land they describe as Mohamed Khalid Nyekombo family land. It is their case that the land measuring 4.5 acres has since been sub-divided into difierent portions ranging from Lamu/ Mokowe Old Town/824 to Lamu/Mokowe Old town/866. It is further the petitioner’s case that the Respondents have without their knowledge or consent allocated themselves the land and fraudulently proceeded to obtain titles thereto. 11. The conditions for consideration in granting such an injunction were long settled in the celebrated case of Giella -vs- Cassman Brown & Company Limited (1973) 358 where the Court observed as follows: “ First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3812/eng@2022-05-12 3

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12. Accordingly the question which arises for determination is whether the application before me meets the threshold set for the grant of the orders sought herein. As to what amounts to a prima facie case, the Court of Appeal in Mrao Limited -vs- First American Bank of Kenya & 2 others (2003) KLR 125 expressed itself 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 property directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 13. In the matter before me, the 1st petitioner avers that the suit property was bequeathed to himself in 1973 by his father the late Mohamed Khalid Nyekombo. The 1st petitioner asserts that his father who passed away in 1991 had purchased the suit property in the 1960s from one Mwalimu Hussein and that they had resided on the land until his father’s demise after which he took over the same. 14. The 1st petitioner avers that he was working with the Kenya Police Department in Kisii County until his retirement and that it was on his return that he discovered that the Respondents were laying claim to the suit property. It is his case that he thereafter sold various portions of the land to the 2nd, 3rd, 4th and 5th petitioners. 15. From the material placed before me however, there was nothing, much to support the Petitioners claims that his father bought the suit property from one Mwalimu Hussein as no sale agreement has been annexed in support of that proposition. 16. In their entire pleadings herein, the petitioners have not provided any evidence and or demonstrated the existence of any parcel of land in the name of the late Mohamed Nyekombo or their own names. 17. On the other hand the respondents have in their replying afidavits demonstrated that they are the registered proprietors of the said parcels of land. While the Petitioners contend that the said 42 titles were procured by fraudulent means, no evidence of the alleged fraud has been placed before thecourt. 18. The evidential burden of proof is captured in sections 109 and 112 of the Evidence Act, cap 80 of the Laws of Kenya as follows: 19. “ 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” From the material placed before me, I was not persuaded that thepetitioners had discharged the legal and evidential burden of proof. The respondents on the other had have annexed copies of title deeds issued to them for the various pieces of land in their possession. In that respect, section 26(1) of the Land Registration Act, No 3 of 2012 provides as follows: 26 (1) The certificate of title issued by the registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3812/eng@2022-05-12 4

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evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except – 20. (a) On the grounds of fraud or misrepresentation to which the person is proved to be a party; or (b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” As Tunoi J (as he then was) stated in Virjay Morjariaa v Nansingh Madhusingh Darbar & another [2000] eKLR: “ It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleadings. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from facts.” 21. Arising from the foregoing, I am not persuaded that the motion dated August 20, 2020 had any merit. I dismiss the same with costs to the respondents. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYERI VIA MICROSOFT TEAMS THIS 12TH DAY OF MAY, 2022. In the presence of: No appearance for the Petitioners No appearance for the Respondents Court assistant - Kendi J. O. Olola JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3812/eng@2022-05-12 5

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