Kipkoech Lagat t/a Kaptarakwa Enterprises v Christopher Salleh & 4 others

2. 3. c. An order of permanent injunction to restrain the 5th defendant by itself, it agent or servants from use, enjoying, running and managing the plaintis guest rooms and the M PESA shop and further to restrain them from receiving any income there from or any rent proceeds whatsoever from any spaces in the suit premises belonging to the plaintis. d. An order of mandatory injunction to issue compelling the 5th Defendant to allow the plaintis or their nominees, agents or servant to freely access, use and enjoyment of their portion of the premises. e. Special damages as per paragraph 17 f. General damages. g. Costs of the suit. h. Any other relief this honorable court deems t and just to grant. The 5th Defendant led a defence and raised a counter-claim seeking the following reliefs:a. A declaration that 5th Defendant is the owner of Eldoret Municipality Block 7/72. b. A permanent injunction restraining the Plainti by himself, his agents, employees, servants or otherwise from dealing or interfering with title Eldoret Municipality Block 7/72. c. The Plainti be condemned to pay the costs of this suit. The 2nd to 4th Defendants did not enter appearance. The Plaintis’ counsel had hinted on withdrawing the suit but this did not materialize as the counsel for the Plainti were unable to agree on two issues. The court gave a hearing date in the presence of the Plainti’s counsel. Come the hearing date neither the Plainti nor his counsel were in court. The Plainti’s suit was dismissed and the 1st and 5th Defendant proceeded with the hearing of the counter-claim. First and fth Defendant’s case; 4. The 1st and 5th Defendants gave their evidence through Titus Komen Korir who is the Chairman of Keiyo Housing Co-operative Society, the 5th Defendant herein. He stated that the 5th Defendant is the registered owner of LR. No. Eldoret Municipality Block 7/72. 5. The Plainti was a tenant of the 5th Respondent, having signed a tenancy agreement dated 1/1/2005 which was to run for 5 years and 2 months. When the tenancy expired, a new tenancy agreement was drawn but the Plainti refused to sign the same. The 5th Respondent issued a notice of termination of tenancy but the Plainti led a reference before the Business Premises Rent Tribunal. The Tribunal ruled against the 5th Defendant. The 5th Defendant moved to the High Court where they led Judicial review proceedings seeking to quash the verdict of the Tribunal but the application for Judicial Review was dismissed. 6. The Plainti and others led HCCC No. 160 of 2012 against the 5th Defendant and 3 others but this suit was dismissed this year. Analysis and determination; 7. I have gone through the documents produced by the 1st and 5th Defendants. The issues which emerge for determination are; rstly, whether the 5th Defendant is the sole owner of the suit property. Secondly, whether an injunction should issue against the Plainti. The Plainti was the 5th Defendant’s member https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20646/eng@2023-10-12 2

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number 60. It appears that he was expelled from the 5th Defendant’s membership. The expulsion is expressed to have been done under by-law number 20 but a look at the 5th Defendant’s by-laws of 2008, the provision for expulsion is under clause 21. A member who has been expelled under clause 21 has an opportunity to appeal against the expulsion at the next meeting of the Society. 8. There was no evidence whether the Plainti appealed against his expulsion which was ratied on 13/7/2012. There is also no evidence of the next meeting where the Plainti would have appealed against his expulsion. This being the case, I have no basis for nding that the Plainti is not a member of the 5th Defendant as to bar him from the activities of the 5th Defendant. 9. The 5th Defendant is seeking a declaration that it is the sole owner of LR. No. Eldoret Municipality Block 7/72. The certicate of lease produced as exhibit 1 clearly shows that the suit property is owned by the 5th Defendant which is holding it for three dierent Co-operative Societies that is Chepkorio Farmers’ Co-operative Society Limited, Metkei Farmers’ Co-operative Society Limited and Kaptarakwa Co-operative Society Limited. There is therefore no basis upon which the 5th defendant can be declared as the sole registered owner of Eldoret Municipality Block 7/72 to the exclusion of the three other Co-operative Societies which came together under the umbrella of the 5th Defendant. Disposition; 10. From the above analysis, it is clear that the 1st and 5th Defendants have failed to prove their counterclaim on a balance of probabilities. The counter –claim is dismissed with no order as to costs. 11 It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 12TH DAY OF OCTOBER, 2023. E. O. OBAGA JUDGE IN THE VIRTUAL PRESENCE OF; Mr. Kibii for defendant. Court Assistant – Brian E. O. OBAGA JUDGE 12TH OCTOBER, 2023 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20646/eng@2023-10-12 3

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