Kutz International Limited v Gicheru & 4 others; Okoth (Interested Party)

as Land Reference Number 23412 Grant IR 77750 situated in Mlolongo, Mavoko Sub – County. 4. That an order do issue for the 1st to 4th Respondents plus their agents to remove all construction materials brought into the premises. 5. That the OCS Mlolongo Police Station be directed to take all necessary steps to enforce the orders herein. 6. That costs be provided for. 2. The Application is premised on the grounds on the face of it and the Supporting Adavits of Khatib Abdullah Ashraf,its Director and Raphael Mutua Kasaam,its property Manager. 3. In the Adavit of Raphael Mutua Kasaam,he deposes that on 26th October, 2022 he received a call from one Pastor Njue who informed him that there were suspicious activities being undertaken on Land Reference Number 23412 hereinafter referred to as the‘suit land’. Further, that a portion of the suit land had been oered for sale and that the said suit land was being subdivided, with resultant subdivisions being sold to unsuspecting buyers. He conrms that on 28th October, 2022, he visited the suit land and found the 4th Respondent busy surveying the land in the company of the 3rd Respondent. Further, that the Police arrested them and it emerged that the 4th Respondent was a Surveyor allegedly instructed by the 1st and 2nd Respondents to subdivide the suit land and they had a title in their name. He explains that the Police sought to investigate the matter and wrote to the OCS Mlolongo Police Station including the Principal Secretary – Ardhi House for details on the title. He reiterates that the 1st to 4th Respondents reentered the suit land with impunity and continued to put up beacons, brought materials to the site and continue to oer the subdivided parcels to unsuspecting buyers. 4. In the Adavit of Khatib Abdullah Ashraf, he deposes that the Plainti is the registered owner of the suit land and annexed a Certicate of Title, two Clearance Certicates, Land Rent Payment and Mavoko Sub County Rates Demand Notice to that eect. He further annexed a Title shown to him by the Police after he made a report and insists it is a forgery. He avers that the Respondents are bent of depriving the Plainti of its property despite Police reports. He reiterates that the Plainti will suer irreparable harm if the Respondents are not restrained from interfering with suit land. 5. The 1st and 2nd Defendants opposed the application by ling a Replying Adavit sworn by Peter Maina Karanja. They contend that they are the registered proprietors of the suit land and insists that a recent search conducted on 10th March, 2023 conrmed this position. They claim they have enjoyed quiet possession of the suit land since 2004 until 4th March, 2023 when the Plainti and its agents invaded it. They insist they are upto date with rates payment and they were issued with a Rates Clearance Certicate to that eect. They claim the Plainti has been using goons to terrorize their workers and the Plainti’s agents have maliciously damaged a chain link fence and interfered with their quiet possession. They challenged the Plainti’s title insisting it is a forgery. They averred that the supporting adavits are defective and incompetent. They further challenged the correspondence annexed by the Plainti and insisted that the Plainti’s title is fake. 6. The Plainti led Supplementary Adavits sworn by Khatib Abdullanh Ashrafand Raphael Mutua Kassamreiterating its averments and insisting that it has been in exclusive possession of the suit land. Further, that the 1st and 2nd Defendants’ title is fake. It insists that the 1st and 2nd Defendants are working in cahoots with the OCS Mlolongo. 7. The Application was canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21389/eng@2023-11-06 2

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Analysis and Determination 8. Upon consideration of the Plainti’s Notice of Motion Application dated the 25th November, 2022 including the respective Adavits as well as rivalling submissions, the only issue for determination is whether the Plainti is entitled to orders of interlocutory injunction pending the outcome of the suit. 9. The Plainti in its submissions insisted that it had established a prima faice case as the owner of the suit land. Further, that there was threat of infringement of its rights in respect to the suit land. It reiterated that it will suer irreparable harm if the Defendants are left to continue with their acts. To support its averments, it relied on the following decisions: Mrao Limited v First American Bank of Kenya Limited & 2 others [2003] KLR 125; Vijay Morjaria v Robert Obwocha & 4 Others [2021] eKLR and John Nzomo Wambua v Joseph Taiti Wambua [2021] eKLR. 10. The 1st and 2nd Defendants in their submissions contend that the Plainti has not satised the threshold for grant of the temporary injunction sought. They insist that the Plainti’s title is fake as it has not attached a Certicate of Ocial Search. To support their averments, they relied on the following decisions: Giella v Cassman Brown [1973] EA 358; Mrao Limited v First American Bank of Kenya Limited & 2 Others [2003] KLR 125; Kanee v Virdi & 2 Others (Environment & Land Case E 288 of 2020) [2022] KEELC 2655 (KLR); Munyu Maina v Hiram Gathiha Maina [2013] eKLR; Kinuthia v Munguti & 2 Others (Environment & Land Case E18 of 2022) [2022] KEELC 15001 (KLR) and James Muigai Thungu v County Government of Trans Nzoia & 2 Others [2022] eKLR. 11. On whether the Plainti has established a prima facie case with a probability of success at the trial, I will rely on the principles as pronounced in the case of Giella v Cassman Brown & Company [1973] EA 358 including the description of a prima facie case as enumerated in the case of Mrao Ltd v First American Bank of Kenya & 2 Others [2003] KLR 125. 12. The Plainti claims to be the registered proprietor of the suit land and produced a Certicate of Title to that eect. The 1st and 2nd Defendants also claim ownership of the suit land and produced a Certicate of Title as well as a Search. The Plainti contends that the 1st and 2nd Defendants’ Title is fake and the 1st and 2nd Defendants insists likewise. Each of the parties claim to be in occupation of the suit land. 13. On perusal of documents presented by the respective parties, I note the Plainti’s title was issued on 19th June, 1998 while the 1st and 2nd Defendants’ title to land which was initially owned by Arthur Magugu was transferred to them by Amos Muiruri Ngata but the date of transfer is not indicated. I note as per the search conducted on 10th March, 2023, it conrmed the 1st and 2nd Defendants owned the suit land. Both parties have presented rate clearance certicates from the Mavoko Sub County Oces. At this juncture, I note there are two competing titles and hold that one indeed must be fake. Further, since this is an Interlocutory Application, the court cannot determine the genuine title unless viva voce evidence is presented. In the case of Agnes Adhiambo Ojwang v Wycliffe Odhiambo Ojijo, Kisumu HCCC No.205 of 2000, the Court held that:“ The purpose of injunction is to preserve the status quo and the status quo to be preserved is the one that existed before the wrongful act.” 14. The Plainti claims the Defendants have descended on the land, proceeded to subdivide it and is selling to unsuspecting buyers. The Defendants did not deny this averment. From the photographs presented by the Plainti, I note there are indeed fresh beacons put on the land. The 1st and 2nd Defendants claim to have been enjoying quiet possession of the suit land since 2004 and that the Plainti’s agents destroyed their fence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21389/eng@2023-11-06 3

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15. Based on the facts as presented and in the interest of justice, noting that there are two competing titles to the suit land I am of the view that there is an urgent need to preserve the substratum of the suit. 16. In the circumstances, while associating myself with the decisions quoted, I direct that no party should be in possession nor interfere with the suit land as well as dispose of it to third parties, pending the hearing and determination of this suit. 17. It is against the foregoing, that I nd the Notice of Motion Application 25h November, 2022 compromised. Costs will be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 6TH DAY OF NOVEMBER, 2023 CHRISTINE OCHIENG JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21389/eng@2023-11-06 4

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