Waganagwa v Land Registrar Kajiado & 9 others

Order 42 Rule 6(1) (2) Civil Procedure Rules and Advocates Practice and Procedure Rules, Judicature Act Cap 5 Laws of Kenya. 2. It seeks under that; i. Spent. ii. The Honourable Court be pleased to stay and set aside the execution of the decision of the Land Registrar, Kajiado passed on 5th November, 2022 in the matter of determination of boundary lines touching on Land Titile No Kajiado/Dalalekutuk 29381, 2953, 11 & 12 pending the hearing and determination of this application and the main suit. iii. The court to grant temporary injunction orders restraining the Defendants/Respondents collectively either by themselves, their agents, employees, auctioneers or any persons acting under their authority from encroaching, subdividing, selling, leasing, constructing, demolishing or dealing in any manner on the land Title No Kajiado/Dalalekutuk 5282 pending hearing of the application and main suit. iv. The ocer commanding Kajiado Police Station to supervise the enforcement of the court orders for tranquillity purposes. v. The costs of the application to be in the cause. 3. The application is premised on the grounds that the Plainti/Applicant is the owner of property Kajiado/Dalalekutuk 5282 who enjoyed quiet possession until the 4th Defendant trespassed on it and destroyed his fence and other properties. This was as a result of the boundary dispute decision made on 5th November 2022. The Applicant thus prayed for issuance of the orders sought else he would suer irreparable loss and damage. 4. The 4th Defendant in his Replying Adavit dated 28th March, 2023 contested the allegation of trespass and destruction of property deponing that his family owned property Kajiado/Dalalekutuk/12 which border parcels number 12, 2938, 11 and 2953. There was a boundary dispute, which the Land Registrar heard and determined that owner of parcel Kajiado/Dalalekutuk/2938 (which gave rise to the Plainti’s parcel) had encroached into the 4th Defendant’s land and the boundary should be rectied. The 4th Defendant deponed that after the lapse of thirty days to appeal the decision, he implemented the decision and put up his fence on the appropriate boundary only for the Plainti’s employees to damage it on 26th January 2023. 5. He indicated that the boundary dispute had already been determined and if the Plainti was aggrieved with the decision he ought to have appealed but not le the instant suit. And it should be dismissed with costs. He also pointed out that his proper name was Kennedy Kissio Rawrraw and not as indicated on the pleadings. 6. This application was heard by way of written submissions. The Plainti ’s/Applicant’s submissions 7. Counsel for the Plainti submitted that the 4th Defendant was not party to the Land Dispute Tribunal suit hence could not appeal a matter he was not party to and the proceedings/ award should be declared null and void. 8. He submitted that the 4th Defendant’s encroachment on his property in an attempt to implement the Tribunal’s decision would cause him irreparable loss and damage. As such he had satised the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22608/eng@2023-12-19 2

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requirements for grant of an interlocutory injunction as was held in Giella vs Cassman Brown [1973] EA 358. The 4th Defendant’s/Respondent’s submissions 9. Counsel submitted that the Plainti’s case had not met the threshold for grant of grant of interlocutory injunction as held in Nguruman Limited vs Jan Bonde Nielsen & 2 others (2014) eKLR. This is because the Plainti did not have a prima facie case since the boundary dispute had already been determined by the Land Registrar. Counsel went on to submit that the Plainti’s title emanated from an illegal encroachment of Kajiado/Dalalekutuk/2938 on the 4th Defendant’s title which could not be protected citing the Supreme Court’s holding in Dina Management Limited and County Government of Mombasa & 5 others. 10. Counsel also submitted that the Plainti had not showed how he would suer irreparable loss and as such the balance of convenience tilted to the 4th Defendant’s whose boundary dispute had been determined in his favour. Analysis and determination 11. 12. I have considered the pleadings, the Notice of Motion, the adavit in support and the response thereto, the rival submissions, and the authorities cited. The issues for determination are: i. Whether Plainti/Applicant is entitled to orders of temporary injunction. ii. Who should bear the costs of this application? In considering whether to grant an interlocutory injunction, courts are guided by the principles set out by the Court of Appeal in the celebrated case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR which held: " In an interlocutory injunction application, the applicant has to satisfy the triple requirements to; (a) establish his case only at a prima facie level, (b) demonstrate irreparable injury if a temporary injunction is not granted, and (c) ally any doubts as to (b) by showing that the balance of convenience is in his favour. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… If the applicant establishes a prima facie case that alone is not sucient basis to grant an interlocutory injunction, the court must further be satised that the injury the respondent will suer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22608/eng@2023-12-19 3

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that the question of balance of convenience would arise. The inconvenience to the applicant if interlocutory injunction is refused would be balanced and compared with that of the respondent, if it is granted...” 13. In this case, the Court cited Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 on the denition of a prima facie case as follows: “ In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sucient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” We adopt that denition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation… 14. On the rst limb of whether the Plainti has established a prima facie case, the Plainti states that the 4th Defendant’s implementation of the Land Registrar’s decision would be detrimental to him and cause him irreparable loss and damage. The 4th Defendant urged this court to dismiss the suit on account that the Plainti ought to have appealed the said decision instead of ling this suit. However, the Plainti averred that he was not party to the dispute tribunal’s case and as such could not appeal against it. 15. I have perused the ruling dated 5th November 2022 and note that the dispute is between the following parcels: Kajiado/Dalalekutuk/2938, 2953, 11 and 12. In the ruling the District Land Registrar held: I nd that the proprietor of parcel number 12 has proved his case on a balance of probabilities that indeed the owners of parcel number 2938 have encroached into their land and the boundary should be rectied by returning it to where initially was supposed to be, point D2 in the report. 16. The Plainti’s parcel of land Kajiado/Dalalekutuk/5282 is not among the aforementioned parcels whose boundary dispute was determined. However, the Plainti has not evidenced how he shall suer irreparable loss and damage which cannot be compensated by an award of damages. 17. In conclusion I nd no merit in this application and the same is dismissed. The plainti/applicant is at liberty to le a boundary dispute with the Land Registrar as per Section 19 of the Land Registration Act. The costs of this application do abide the outcome of the main suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 19TH DAY OF DECEMBER 2023. L. KOMINGOI JUDGE. In The Presence Of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22608/eng@2023-12-19 4

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Mr. Wachakana for the Plainti. N/A for the 1st – 3rd Defendants. Mr. Ibrahim for the 4th Defendant. N/A for the 5th-10th Defendants. Court Assistant – Mutisya. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22608/eng@2023-12-19 5

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