Munywoki v Mwangi & 3 others

messrs Hayanga & Company that did the transfer of suit land conrmed that the said transfer was done to the 1st and 2nd defendants. They denied undertaking any transfer to the plainti. 3. The 1st and 2nd defendants in their notice of motion application dated the March 17, 2023 supported by the adavit sworn by Peter Muhiu Mwangi have also sought for orders of temporary injunction restraining the plainti or his agents from interfering with land reference No 12715/146 (IR No 44487) pending the determination of this suit. The plainti led a replying adavit insisting that he is the registered proprietor of the suit land since April 24, 1990. Further, that he has been paying land rates to Mavoko Municipality and denied that his business partner has been charged at Mavoko Law Courts. 4. The plainti together with the 1st and 2nd defendants led their respective submissions to canvass the three applications. Analysis and Determination 5. Upon consideration of the plainti’s notice of motion applications dated the March 12, 2023 and March 22, 2023 as well as the 1st and 2nd defendant’s notice of motion application dated the March 17, 2023, the respective adavits, annexures including rivalling submissions, the following are the issues for determination:Whether the plainti is entitled to orders of interlocutory injunction restraining the defendants from interfering with the suit land pending the outcome of the suit.Whether the 1st and 2nd defendants are entitled to orders of interlocutory injunction restraining the plainti from interfering with the suit land pending the outcome of the suit. I will deal with both issues jointly. 6. The plainti in his submissions reiterated the averments as per the two notice of motion applications including adavits and contended that he has established a prima facie case to warrant the orders sought as he is the registered proprietor of the suit land which the 1st and 2nd defendants are interfering with. To support his arguments, he has relied on the following decisions: Giella v Cassman Brown & Company (1973) EA 358; Mrao Ltd v First American Bank of Kenya & 2 others (2003) KLR 125; Kenleb Cons Ltd v New Gatitu Service Station Ltd & another (1990) eKLR and Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) eKLR. 7. The 1st and 2nd defendants in their submissions also reiterated their averments as per the instant notice of motion application including the respective adavits and insisted that as registered proprietors of the suit land, they had established a prima facie case to warrant the orders of injunction as sought. They contended that the plaintis documents are fake. To support their averments, they relied on the following decisions: Giella v Cassman Brown & Company (1973) EA 358; Mrao Ltd vs First American Bank of Kenya & 2 others (2003) KLR 125 and Moses C. Muhia Njoroge & 2 others v Jane W Lesaloi & 5 others (2014) eKLR. 8. In line with the principles established in the case of Giella v Cassman Brown & Company (1973) EA 358 as well as the denition of a prima facie case as highlighted in the case of Mrao Ltd v First American Bank of Kenya & 2 others (2003) KLR 125, I will proceed to determine whether the plainti or 1st and 2nd defendants have established a prima facie case to warrant the orders of interlocutory injunction as sought in the respective applications. 9. The plainti claims he is the registered proprietor of the suit land and annexed a certicate of title and copy of search to that eect. He states that he is in possession of the suit land and had been paying rates to the Mavoko Municipal Council. Further, that it is the 1st and 2nd defendants interfering with his occupation of the suit land. The 1st and 2nd defendants also claim ownership of the suit land and https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20446/eng@2023-10-05 2

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contend that the plainti including his agents trespassed thereon and commenced putting a wall. They insist they are in occupation thereon. The 1st and 2nd defendants annexed various documents including a certicate of title; transfer dated April 26, 1999 between Rael Munyiva Kithuku; Boniface Musyoki Kithuku and Peter Muhu Mwangi and Lucy Wangare Muhiu; payment receipt for transfer; certicate of conrmation of grant dated the March 5, 1999 in the estate of Nathan Kithuku Mbithi issued to Rael Munyiva Kithuku and Boniface Musyoki Kithuku wherein the suit land has been distributed to his beneciaries; and transfer dated the April 23, 1990 between Syokimau Farm Limited and Nathan Kithuku Mbithi I have had a chance to peruse the various annexures herein, noting that the 1st and 2nd defendants have provided various correspondence challenging the plainti’s title, I opine that the pertinent issues raised can only be properly dealt with in a substantive hearing where viva voce is presented. Justice Tuiyott (as he then was) in the case, In the matter of an application by Saifudeen Abdullabhai & 4 others for leave to apply for judicial review and for orders of certiorari and prohibition (2013) eKLR, stated that: “ …then turn to the nature of orders made by the tribunal. I accept that the Court of Appeal has repeatedly stated that the tribunal has no jurisdiction to issue an injunction. This court is, however, of the view that the tribunal has jurisdiction to make an order to preserve the status quo of a matter before it pending the hearing and determination of a reference or complaint made to it. I fully endorse the exposition of Murithi J in Baobab Beach Resort (Mombasa) Ltd (supra) when he said, “In my view, an order to status quo to be maintained is dierent from an order of injunction both in terms of the principles for grant and the practical eect of each. While the latter is an substantive equitable remedy granted upon establishment of right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its eect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint. In its negative form, however, an injunction may have the same eect as an order for status quo. I nd that the Tribunal has among the orders that it may make on a complaint under section 12(4) of the Landlord and Tenant Act an order for status quo to hold the situation in the controlled tenancy until the determination of the proceedings led thereon.” 10. Based on the facts before me while associating myself with the aforementioned decisions, it is my considered view that since the plainti including the 1st and 2nd defendants claim ownership of the suit land, it would suce if the suit land was preserved pending the outcome of this suit. At this juncture, I opine that orders of status quo would be the best remedy. 11. In the circumstances, I nd the plainti’s notice of motion applications dated the March 12, 2023 and March 22, 2023 as well as the 1st and 2nd defendant’s notice of motion application dated the March 17, 2023 compromised. I will proceed to make the following nal orders: a. The obtaining status quo be maintained where no one should interfere with the suit land nor develop it, pending the determination of this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20446/eng@2023-10-05 3

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b. Costs of the three (3) applications be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 5TH DAY OF OCTOBER, 2023 CHRISTINE OCHIENG JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20446/eng@2023-10-05 4

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