Green Vine Heights Limited & 4 others v Kazungu & 63 others (Environment & Land Case E069 of 2024) [2024] KEELC 14012 (KLR) (19 December 2024) (Ruling)
Neutral citation:
[2024] KEELC 14012 (KLR)
Republic of Kenya
Environment & Land Case E069 of 2024
NA Matheka, J
December 19, 2024
Between
Green Vine Heights Limited
1st Plaintiff
Maimuna Mzee Khamis
2nd Plaintiff
Khamis Mzee Khamis
3rd Plaintiff
Salama Khamis Mzee
4th Plaintiff
rehema Haji Iddi
5th Plaintiff
and
Kahindi Kitsao Kazungu & 63 others & 63 others & 63 others
Defendant
Ruling
1The application is dated 29th July 2024 and is brought under Section 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act, Order 51 Rule 1, Order 40 Rules I, 2, and 3 of the Civil Procedure Rules seeking the following orders;
1.That pending the hearing and determination of this application inter partes, this Honourable court be pleased to grant an interim injunction restraining the Defendants {}by themselves, their family, agents, proxies, servants, employees and/or otherwise {}whatsoever. from encroaching, trespassing, constructing, fencing, cultivating, grazing, obstructing the applicants' right of ingress and/or egress into and/or out of PLOT Nos. 20953/1/MN, 20959/1/MN and 20960/1/MN, or in any manner whatsoever interfering with the plaintiffs' peaceful and quiet possession, occupation, use and enjoyment of PLOT Nos. 20953/1/MN, 20959/1/MN and 20960/1/MN.
2.That this Honourable Court be pleased to order that the Officer in charge of Mbungoni Police Post or any other officer acting under their direction do maintain law and order during the enforcement of the orders issued herein.
3.That pending the hearing and determination of this suit, this Honourable court be pleased to grant a temporary injunction restraining the Defendants by themselves, their family, agents, proxies, servants, employees and/or otherwise whatsoever, from encroaching, trespassing, constructing, fencing, cultivating, grazing, obstructing the applicants' right of ingress and/or egress into and/or out of PLOT Nos. 20953/1/MN, 20959/1/MN and 20960/1/MN, or in any manner whatsoever interfering with the {}}plaintiffs' peaceful and quiet possession, occupation, use and environment of PLOT Nos. 20953/1/MN, 20959/1/MN and 20960/1/MN.
2It is based on the grounds that the Plaintiffs were at all material times the legal owners entitled to exclusive possession, enjoyment and use of PLOT Nos. 20953/1/MN, 20959/1/MN and 20960/1/MN situate in Mombasa. {}That on or about June, 2024, the Defendants, wrongfully and without any colour of right forcibly trespassed into the plaintiffs' properties and took possession of parts of the suit property by erecting semi-permanent houses made from wattle. {}That the invasion was reported at Mbungoni Police Post and on or about 3rd of July, {}2024, before the defendants could complete building their structures and occupying them- the plaintiffs with the help of the police from Mbungoni Police Post, local administration and community members drove the defendants out of the suit properties. That again on 17th July, 2024 at around 9.30 am the defendants who were armed forcibly entered the plaintiffs' property and started slashing grass, clearing bushes and erecting semi-permanent houses but were similarly driven out of the property with the assistance of police officers from Mbungoni Police Station. That during the invasion, the defendants blocked access roads to the properties and pelted the plaintiffs and their family members with stones, some of whom sustained bodily injuries. That the defendants have threatened and intend, unless restrained by this Honourable Court, to wrongfully re-enter and re-occupy the suit property and thereby trespass thereon and deprive the plaintiffs of their peaceful use and enjoyment of the property.
3This court has considered the application, supporting affidavit and annexures therein. The defendants who are over 60 people were served by way of advertisement but failed to file any response. The prayer for temporary injunction is well discussed in the celebrated case of Giella vs Cassman Brown (1973) EA 358. In Nguruman Limited vs Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR the Court of Appeal held that;
4On the first pillar, the plaintiffs state that they were at all material times the legal owners entitled to exclusive possession, enjoyment and use of PLOT Nos. 20953/1/MN, 20959/1/MN and 20960/1/MN situate in Mombasa. {}That on or about June, 2024, the Defendants, wrongfully and without any colour of right forcibly trespassed into the plaintiffs' properties and took possession of parts of the suit property by erecting semi-permanent houses made from wattle. They attached is copies of the searches of the suit properties PLOT Nos. 20953/1/MN, 20959/1/MN and 20960/1/MN respectively. I find that they have established a prima facie case. Section 26 of the Land Registration Act states as follows;(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—a.on the ground of fraud or misrepresentation to which the person is proved to be a party; orb.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.”
5On the 2nd pillar of temporary injunctions, the plaintiff is required to show irreparable injury and I am guided by Pius Kipchirchir Kogo vs Frank Kimeli Tenai (2018) eKLR where court held;
6The Plaintiffs state that on or about June, 2024, the defendants, forcibly trespassed into the plaintiffs' properties and took possession of parts of the suit property by erecting semi-permanent houses. The matter was reported at Mbungoni Police Post and on or about 3rd of July, {}2024 and the defendants were driven out of the suit properties. That again on 17th July, 2024 at around 9.30 am the defendants tried to reenter and were again driven out of the property with the 
assistance of police officers from Mbungoni Police Station. I find that the plaintiffs would suffer irreparable damage if the defendants were allowed to stay erect semi-permanent houses and occupy the suit land.
assistance of police officers from Mbungoni Police Station. I find that the plaintiffs would suffer irreparable damage if the defendants were allowed to stay erect semi-permanent houses and occupy the suit land.
7The 3rd pillar which is the balance of convenience. In Pius Kipchirchir Kogo case (Supra) the court held;
8It is clear from the annexed photos that the defendants are not in occupation save for some structures which seem to have been pulled down. I find the balance of convenience falls in the favour of the plaintiffs who are still in occupation as the defendants have threatened to occupy but have been unable to do so. I find that the plaintiffs have established a prima facie case and I order that the status quo be maintained pending the hearing and determination of this matter. Costs of this application to be in the cause. Parties are advised to comply with order 11 and fix the matter for hearing.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 19TH DAY OF DECEMBER 2024.N.A. MATHEKAJUDGE