Kayoyo Investment Limited v Nesclay Limited & 3 others; Nesclay Limited (Plaintiff to the Counterclaim); Kayoyo Investment Limited & 6 others (Defendant to the Counterclaim) (Environment & Land Case E006 of 2022) [2023] KEELC 701 (KLR)

RULING 1. There are 2 applications for determination before this Court, one dated January 13, 2022 brought forth by the plaintifi and another dated April 19, 2022 filed by the 1st defendant. Both are seeking injunctive orders against each other alongside other prayers. The first salvo was thrown by the plaintifi (Kayoyo Investments Limited) who filed this suit contemporaneously with the application dated January 13, 2022 which application was presented to me in the digital platform under Certificate of Urgency on January 17, 2022. The court gave directions that the same be served for interpartes hearing on February 8, 2022. On February 8, 2022, the Attorney General and the County Government of Nairobi had not filed their responses, as such, the court gave time lines for the filing of the necessary documents including submissions and the hearing was then re-scheduled to April 25, 2022. 2. On April 19, 2022, I handled the 2nd application of the even date where the 1st defendant is equally seeking injunction orders against the plaintifi while framing their claim as a Counter Claim. I gave directions that the said application be served for further directions on April 25, 2022. Directions of April 25, 2022 3. Taking cognizance of the existence of the two applications, the court gave directions as follows; “ In view of the fact that there is an application dated January 13, 2022 for injunction and another one by the 1st defendant dated April 19, 2022 also for injunction, then I proceed to give the following orders: i. That status quo be maintained on the ground; such that no beacons or survey is to be under taken on the land. ii. There be a scene visit conducted by the Deputy Registrar in the presence of counsels for the parties or their appointed representatives. The Deputy Registrar to file a report capturing: a. What is the physical state of the land including structures, trees if any, cultivation constructions etc. b. Who is in possession of the developments or the physical state of the land, ie in respect of LR No 7716/16/2 and for LR 7716/16 IR 7990. iii. The counsels for the parties to avail photographs of the suit properties during the scene visit and to attach to their respective afidavits. iv. In the intervening period the 2nd – 4th defendants to avail their respective Replying Afidavits to the two applications v. Mention before the Deputy Registrar on May 10, 2022 to arrange the scene visit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/701/eng@2023-02-09 2

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Scene Visit Report 4. The scene visit exercise was not a walk in the park, nevertheless, the Deputy Registrar did file the report whose contents are captured as follows; “ This is in reference to the court order issued on April 25, 2022 by Honourable Lady Justice L Mbugua that the Deputy Registrar visits the locus quo to ascertain: i. The physical state of the land including structures, trees if any, cultivation or construction etc. ii. Who is in possession of the development or the physical state of the land; in respect of LR No 7716/16/2 and LR No 7716 IR 7990. The locus quo was visited on July 22, 2022 in the presence of 1. Mr Kamau for the Plaintifi 2. Mr Allen Gichuhi for the 1st Defendant 3. Ms Fatma for the 2nd and 3rd Defendants 4. Mr Modi for the 4th Defendant 5. Mr Mwongela for the 7th Defendant in the Counter-claim. The court was shown the suit property which is directly opposite the Australian High Commission on Limuru Road. The same measures approximately 11.2 acres ie LR No 7716 IR 7990. The court later visited the locus in the absence of the parties to take pictures after the previous photos taken got lost. As evidenced by the pictures attached to this report, there is a house built on one part of the property while the rest of the area consists of trees. The other part of the property has been cultivated on and consists of a banana plantation, avocado trees, beans, chickpeas, mango trees, macadamia trees, a beehive, spinach and kales etc. This court confirms that Ms Mary Nesbitt and her 2 sons, Nicholas and Eric Nesbitt are in actual possession of the suit property since 1986. They have about 5 employees who also reside on the property. Aside from the photos, a map of the area is attached to this report”. The Application Dated 13/1/2022 5. The Plaintifi seeks a temporary order of injunction restraining the Defendants whether by themselves/ proxies from cancelling Grant IR No 233251 and the attendant survey records, trespassing, engaging in construction and /or interfering in any other way with the Plaintifi’s peaceful and quiet enjoyment of land Reference No 7716/16/2 pending hearing and determination of the suit and an order for the OCS Gigiri Police station to ensure compliance with the Orders for purposes of maintaining peace and order. 6. The application is based on grounds on its face and on the Plaintifi’s supporting afidavit sworn on January 13, 2022 by its director George Mwangi Wakangu. In summary, the plaintifis aver that they are the registered owners of the property known as Land Reference No 7716/16/2 (Grant No IR 233521) (suit land), having purchased the said land and a transfer efiected on December 16, 2021. To this end, they have availed a certificate of title and a copy of oficial search dated January 6, 2022 to prove their claim of ownership. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/701/eng@2023-02-09 3

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7. The plaintifis further contend that through the conduct of due diligence, they established that the suit property was registered pursuant to a survey conducted in 1988 and that the original owners of the said land and who sold it to the Plaintifi have held the same since December 1, 1997. 8. That during the re-establishment of the beacons exercise, the Plaintifi was obstructed by goons deployed by the 1st Defendant who claim that the suit property forms part of its land. Mr Wakangu then reported the 1st Defendant’s actions to the DCIO Gigiri Police station who got no response despite summoning the 1st Defendant. He deposes that the Plaintifi is currently unable to access its land let alone commence its development plans owing to the 1st Defendant’s interference. 9. The plaintifis got wind of an illicit scheme to dispossess them of the suit property without following due procedure of the law through cancellation of their original deed, hence the prayers sought herein. 10. In opposition to the Application dated January 13, 2022, the 1st Defendant filed a Replying Afidavit sworn on February 7, 2022 by its director one Nicholas A Nesbitt. In summary, the 1st defendant avers that Plaintifi’s suit is based on a fake title obtained from an illegal subdivision of the 1st Defendant’s title known as LR 77/16/1R 7990 acquired by way of purchase from Neswa Limited on June 6, 1972. He further deposes that they (1st defendant) have been in possession of title and have been paying the requisite land rates. 11. Over the years, the property has been leased and charged at difierent times and from 1996, the Nesbitt family has occupied it uninterrupted as their family home and they have not subdivided any portion of it nor sold or leased any piece of the land to anyone else. 12. The 1st defendant contends that in 1987, they commissioned a licensed surveyor, Mr Walter Absalom to draw up a subdivision of the entire property. The proposed subdivision was then submitted to the Director of City Planning & Architecture in the Nairobi City Commission. It was then approved by the Ministry of Lands and Settlement vide its letter dated May 23, 1989 subject to fulfillment of 12 conditions, one of which was that a portion of the land would need "to be reserved for public purpose (a Clinic) and to be surrendered to the government for free”. 13. However, the 1st Defendant did not proceed with the subdivision and it did not surrender its title due to the expensive conditions contained in the letter of approval of subdivision. The 1st defendant avers that the subdivision appears to have been irregularly registered on the basis of 16 deed plans Nos 425249-425264 as 8 years later, trouble with the land started with grabbers claiming the various subdivisions. 14. In a bid to protect its land, on June 8, 1988, AH Malik & Company, the 1st Defendant’s lawyers published a caveat emptor on LR 7716/16 on the local newspapers, which caveat has never been withdrawn to date. 15. The other parties did not file responses to the application. The Application Dated April 19, 2022 16. The 1st Defendant, now a plaintifi in the Counter Claim is similarly seeking orders of injunction restraining the 1st, 6th and 7th Defendants whether by themselves, their agents, employees and/or servants from charging , selling, leasing, transferring, alienating, trespassing or dealing in any manner howsoever with the Plaintifi’s property LR 7716/16 IR 7990 and from asserting any ownership on the basis of the 16 deed plans Nos 425249-425264 and Certificates of Title over Land Reference Nos 7716/16/2 and 7716/19-33. The 1st defendant is also seeking an order of inhibition in respect of the suit properties. They also seek various prayers directing the Chief Land Registrar and the Director of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/701/eng@2023-02-09 4

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Survey to produce a myriad of documents including reports, and to reconstruct their (1st defendant’s) file. 17. The application is premised on the grounds set out on its face and on the Supporting Afidavit of its director one Nicholas A Nesbitt sworn on April 19, 2022. He rehashes the averments in his earlier Replying Afidavit sworn on February 7, 2022 in opposition to the Plaintifi’s Notice of Motion Application Dated January 13, 2022. The 1st defendant contends that on October 20, 2021, agents of the 1st (read the plaintifi) ,6th and 7th Defendants sent hired laborers on to the Plaintifi’s property to tear down the prominently displayed “Not for sale” signs, but the trespassers were repulsed. They returned on November 1, 2021 bringing surveyors from Nairobi Metropolitan Services on behalf of GeePee General Traders Limited but they were again repulsed. 18. No responses were filed in respect of the application dated April 19, 2022. Determination 19. I have considered all the issues raised herein including the rival submissions of the parties. For purposes of this ruling and in order to main good order, the plaintifi in the main suit will be identified as such; The plaintifi, while the plaintifi in the Counter claim shall be refereed to as the 1st defendant. The issues arising for determination are; Whether the Plaintifi and /or the 1st Defendant has met the threshold for grant of interlocutory injunctions, whether an order of inhibition should be issued and whether there is a basis to order production of documents by the 1st,6th and 7th Defendants, the Chief Land Registrar and Director of Surveys and to reconstruct 1st defendant’s file at this stage. 20. The Plaintifi is apprehensive that it will be dispossessed of the land known as Land Reference No 7716/16/2 through cancellation of its original deed plan by 3rd Defendant under the 2nd Defendant’s instructions. It seeks an order to restrain them from doing so and an interlocutory injunction to restrain the 1st Defendant from dealing with the suit land in any manner. 21. On the other hand, the 1st Defendant also seeks an interlocutory injunction to restrain the 1st,6th and 7th Defendants from dealing with the property known as Land Reference No 7716/16 IR No 7990. 22. In the case of Giella v Cassman Brown [1973] EA 358, the court stated the conditions for grant of interlocutory injunctions as follows; “ The conditions for the grant of interlocutory injunction are now I think well settled in East Africa. First an Applicant must show a prima facie case with probability of success. Secondly an interlocutory injunction will not be normally 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.” 23. The Plaintifi presented in evidence a certificate of title and a copy of oficial search dated January 6, 2022 indicating that it is the proprietor of Land Reference No 7716/16/2 (Grant No IR 233521). The 1st Defendant argues that the certificate of title issued to the Plaintifi is a forgery arising from the illegal subdivision of its property known as LR 77/16/1R 7990. The 1st defendant has similarly annexed its certificate of title to the suit properties. From the material so far presented before me, it appears that both the Plaintifi and the 1st Defendant have established an arguable case. 24. There is hence a need to interrogate the other criterias; Who stands to sufier irreparable injury which would not adequately be compensated by an award of damages?, The balance of convenience tilts in https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/701/eng@2023-02-09 5

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whose favour? The plaintifi submitted extensively that land is unique and no one parcel of land can be equated in value to another; Averring that it has mobilized resources with a view to setting up a medical facility in line with the suit property’s conditions of use. However, no evidence was tabled in proof of the averments that it has made considerable investments on the suit land that cannot be compensated by way of damages. The plaintifis have not demonstrated that they ever had physical possession or control of the suit premises. 25. On the other hand, the Deputy Registrar’s site visit report dated October 24, 2022 confirmed that LR7716/16-IR is in possession of Ms Mary Nesbitt and her sons. The photographs clearly show that there is a residential house on the land, as well as stafi quarters where employees reside while the rest is covered in vegetation and crops. 26. I therefore find that it is the 1st Defendant who has established that it would sufier irreparable injury that would not adequately be compensated by an award of damages. Thus even the balance of convenience tilts in their favour. 27. Another point for consideration on the issue of injunctive orders relates to the pleadings of the plaintifi where in the final prayers no (c) and (d), they seek the following orders; 28. i. “An order be issued ordering the Defendants to remove all structures and ofiending materials they have placed on the suit property. ii. In the alternative, an order of eviction be granted against the Defendants, their servants or agents from the suit property”. In essence, the issuance of injunctive orders as prayed in the application dated January 13, 2022 would amount to granting a major relief at the interlocutory stage of the suit. In the case of Daniel Atibu Jasimba v Ainea Sandanyi Magana [2013] eKLR, the court had this to say in respect of a prayer relating to a major relief; “ Since the Plaintifi’s suit is for eviction of the defendant from the said residence, such an injunction will amount to granting a major relief in the suit without the benefit of a hearing”. 29. Similarly in the Court of Appeal case of Olive Mwihaki Mugenda & another v Okiya Omtata Okoiti & 4 others [2016] eKLR, the court cited the Indian case of Ashok Kumar Bajpai - v- Dr (Smt) Ranjama Baipai, AIR 2004, All 107, 2004 (1) AWC 88, where the court had expressed itself as follows: “ …It is evident that the Court should not grant interim relief which amounts to final relief…”. 30. Likewise, this court cannot grant a major relief at the interlocutory stage before the suit is heard on its merits. 31. I find that in so far as the prayers for injunction orders are concerned, the most eficacious orders to give are the maintenance of status quo both in terms of registration status as well as ground status. The Court of Appeal defined what ‘status quo’ means in the case of Shimmers Plaza Limited vs National Bank of Kenya Limited [2015] eKLR as follows: “ Status quo’’ in normal English parlance means the present situation, the way things stand as at the time the order is made, the existing state of things.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/701/eng@2023-02-09 6

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32. On the issue of production of documents, there is no basis to warrant the issuance of such orders at this stage of the trial. Such issues should be dealt with during the pretrial stage through the various methods like notice to produce and summons to the relevant personnel to produce documents or reports. The other prayer sought by the 1st defendant for reconstruction of their Deed File in respect of its property Land Reference 7716/16-IR 7990 is equally unmerited as it amounts to an order of mandamus, which order cannot be issued at the interlocutory stage as no special circumstances warranting the issuance of such orders have been profiered; See Nation Media Group & 2 Others vs John Harun Mwau [2014] eKLR, Lucy Wangui Gachara V Minudi Okemba Lore [2015] e KLR and Kenya Breweries Ltd & Another vs Washington O Okeya [2002] eKLR. Final orders: 1. The application dated January 13, 2022 is hereby dismissed. 2. The application dated April 19, 2022 is hereby partially allowed in terms of the following; 3. a) An order of status quo is hereby issued in respect of the entire suit properties; For avoidance of doubts, a) the ground status entails that the 1st defendant shall be in possession and control of the suit premises. The plaintifi is restrained from interfering with the suit premises. b) An order of inhibition is hereby issued in respect of the suit premises such that the same shall not be alienated in any manner. c) The prayers sought in number 4, 5 and 7 in the application dated April 19, 2022 are hereby dismissed. The costs of the two applications shall abide the out come of the main suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF FEBRUARY, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:K. Kamau for Plaintifi Allen Gichuhi for 1st Defendant Kubai for 2nd & 3rd Defendants (in the counter claim) Madi for 4th Defendant Ochieng for 7th Defendant in the counter claim Court assistant: Eddel https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/701/eng@2023-02-09 7

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