Ruigu & 2 others v Tanui & 5 others (Environment & Land Case E013 of 2023) [2024] KEELC 5996 (KLR)

Plaintifi’s land ofiering it for sale, selling and/or in any other manner interfering with the Plaintifi’s quiet and peaceful occupation of the land known as i. LR No. 7340/471 ii. LR No. 7340/472 iii. LR No. 7340/473 iv. LR No. 7340/474 Pending the hearing and determination of the suit herein. d. That the Defendant’s agents, servants, purchasers and employees be evicted from: i. LR No. 7340/471 ii. LR No. 7340/472 iii. LR No. 7340/473 iv. LR No. 7340/474 e. That the Plaintifi be granted leave to demolish all the structures illegally raised on the parcel of land in issue, the OCS Muungano Police Station-Utawala to supervise the demolition. f. That the costs of this Application be provided for. 2. The Application was premised on the grounds on the face of it and the Supporting Afidavit of Nicholas Njoroge Njenga, the 2nd Plaintifi herein, where he deposes that together with the other Plaintifis, they are the registered owner of land parcel LR Nos. 7340/471; 7340/472; 7340/473 and 7340/474 respectively, hereinafter referred to as the ‘suit lands’. He claims they have been in quiet and peaceful possession of the suit lands until the 1st to 4th Defendants’ trespassed thereon and commenced fencing the said lands. He avers that they purchased the suit lands from some of the beneficiaries of the Estate of the late Kiarie Kirimire called David Njenga Kiarie and Simon Njenga Kiarie. Further, at that time it was one block known as 7340/58 which was subdivided into LR Nos. 7340/471; 7340/472; 7340/473 and 7340/474 respectively. He reiterates that they have sufiered loss and damage due to the Defendants’ acts of trespass since they cannot utilize their land. He explains that they have seen documents being fiagged by the 1st to 4th Defendants that they own the suit land, which is an amalgamation of their four plots and this is pure forgery. 3. The 1st to 4th Defendants opposed the instant Application by filing a Replying Afidavit sworn by the 2nd Defendant Wilson Irungu Kimani where he deposes that this suit is res judicata by dint of the Judgment in Mavoko CM ELC No. 6 of 2019 Ngelauta Self Help Group Vs Nicholas Njenga & Another, where the 2nd Plaintifi was the Defendant. Further, that the said Judgment was not reviewed and appealed against. He reiterates that it is actually the Plaintifis’ who have trespassed on the suit land. Analysis and Determination 4. Upon consideration of the instant Notice of Motion Application including the respective Afidavits and annexures, at this juncture the only issue for determination is whether the Plaintifi’ are entitled to orders of interlocutory injunction restraining the Defendants from interfering with the suit land pending the outcome of this suit. 5. In line with the principles established in the case of Giella Vs Cassman Brown (1973) EA 358 as well as the description of a prima facie case as espoused in the case of Mrao Ltd vs First American Bank https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5996/eng@2024-09-17 2

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Ltd, I will proceed to decipher whether the Plaintifis’ have established a prima facie case to warrant the orders of temporary injunction as sought. 6. The Plaintifis claim they are the registered owners of the suit lands and have been in quiet and peaceful possession thereon, until the 1st to 4th Defendants trespassed thereon and commenced fencing the said lands. It was their contention that they purchased the suit lands from some of the beneficiaries of the Estate of the late Kiarie Kirimire called David Njenga Kiarie and Simon Njenga Kiarie. They aver that at the time of purchase it was one block known as 7340/58 which was subdivided into LR Nos. 7340/471; 7340/472; 7340/473 and 7340/474 respectively. They insist that they have sufiered loss and damage as a result of the Defendants acts of trespass. They reiterate that the documents of title in possession of the 1st to 4th Defendants are a forgery. 7. The Defendants opposed the instant Application and insist that this suit is res judicata by dint of the Judgment in Mavoko CM ELC No. 6 of 2019 Ngelauta Self Help Group Vs Nicholas Njenga & Another, where the 2nd Plaintifi was the Defendant. They argue that the said Judgment was never reviewed nor appealed from. They contend that it is actually the Plaintifis who have trespassed on the suit lands. 8. Looking at the documents presented, including the Plaint, other Afidavits of Nicholas Njenga Njoroge and Wilson Kimani which are part of the court record, I note both the Plaintifis and the 1st to 4th Defendants have titles to the suit lands. I note in the Judgment in Mavoko CM ELC No. 6 of 2019 Ngelauta Self Help Group Vs Nicholas Njenga & Another, trial court vide its Judgment delivered on 30th March, 2022 observed that the Plaintifis’ therein including the 1st Defendant who is the 2nd Plaintifi herein did not own land parcel number 7340/58 where the suit lands emanated from. In this instance, the 2nd Plaintifi herein is part of the Plaintifi’s claiming ownership of the suit lands. From these facts alone, I opine that all the Plaintifis’ herein, should have sought to join the aforementioned proceedings in Mavoko CM’s Court and not file a fresh suit. From the facts before me, noting that there are two competing titles herein, it is pertinent if both parties herein demonstrate how each acquired titles to the suit lands. 9. In the foregoing, at this juncture, I find that the Plaintifis have not established a prima facie case to warrant the orders of temporary injunction as sought. 10. Further, based on the principles established in the case of Nguruman Limited v Jan Bonde Nielsen where the Court of Appeal held that in instances where the Plaintifi has not established a prima facie case, the court need not proceed to deal with the other two limbs on injunction, and will I decline to do so. 11. In the foregoing, I find the instant Notice of Motion Application unmerited and will dismiss it but make no order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 17TH DAY OF SEPTEMBER, 2024 CHRISTINE OCHIENG JUDGE In the presence of: Kaveke for 1st, 2nd, 3rd and 4th Defendants Ms. Nyambura for Plaintifi Court Assistant – Simon/Ashley https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5996/eng@2024-09-17 3

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