REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT   NAKURU

E.L.C NO 66 OF 2013

JOSEPH LENDUSE ELDAISABA............................^ST PLAINTIFF

DANIEL LENDUSE ELDAISABA............................2^ND PLAINTIFF

MIKE LENDUSE.......................................................3^RD PLAINTIFF

VERSUS

PAUL GUGO LESWAGEY......................................1^ST DEFENDANT

COUNTY COUNCIL OF NAKURU.........................2^ND DEFENDANT

R U L I NG

1.  The   plaintiffs notice of  motion dated  7^th March, 2012 seeks inter alia,  a temporary injunction restraining the defendants  from  interfering  and/ or   trespassing  on  the plaintiffs  parcels  of   land,  namely, Nessuit Settlement Scheme/Nku/No  1947, 1948, 1949, 1950, 1969,1970, 1971, 1972, 1973, 1975, 1976, 1977, 1978, 1979, 1990, 1991, 1992, 1993 and 1994 (“the suit properties"). They also seek that   eviction orders be    issued against the defendants as well as costs of the application.

2.  The  application is premised on  the grounds on  the  face of  the   application and is supported by  the affidavit of  the 1st  plaintiff sworn on  7^th March,  2012. He depones that the plaintiffs are members of the Ogiek community who together with their extended families, have resided on the suit properties since time immemorial where they have practiced subsistence farming and pastoralism as a way of life. The defendants have now laid claim to the area occupied by  the plaintiffs without any right or interest  in the  suit properties, have erected beacons  thereon and destroyed the  plaintiffs  crops despite the  same  being communal land to  which title  deeds have not been issued. He  further depones that he  and  others  were charged  with the  offence of malicious damage to  property in  2010 (JLE2) on     the instigation of the defendants and that     the  suit properties are part of the Mau Forest Complex  whose dealings were   stopped  by  the court in  Nairobi  HCCC No 637 of 1997 and Nairobi HCCC  No 421 of 2002  (JLE3). He urged the court to grant the orders sought as failure to do so would render them destitute.

3.  In opposing the   application, the   1^st defendant swore a replying affidavit dated 17^th May 2012. He deponed that he is the elected Councilor of Nessuit ward and a member of the Ogiek Community; that the plaintiffs do   not own   the suit properties as they own   and occupy parcels Nos.  630, 631, 632, 633, 638, 639, 640, 641,642,643, and 644 in Nessuit Location as evidenced by a letter from the local chief (PGL1)   which parcels are separate from Nessuit trading centre. It is his contention that this is a scheme by the plaintiffs to grab the suit properties (specifically 11-41) and that they   were even charged in court for destroying beacons of the aforesaid parcels.

4.  He  further deponed that the suit properties form part of Nessuit  trading centre which were   set aside to  assist the community access basic necessities, proper housing and also to  assist them earn  revenue; that  the plaintiffs were not among the  squatters  residing within the trading centre as they held   land elsewhere (PGL4)  that all  the squatters residing at the  trading centre had been allocated land and issued with letters of allotment by the  2nd defendant (PGL 5 and PGL6)  and  the allotees had been paying rates and rent to  the Council (PGL7).

5.   The    2^nd defendant equally opposed the application. Joseph  M  Malinda the  Clerk, County  Council  Nakuru, swore a replying affidavit on  12^th July, 2012 in  which he deponed that  according to   records  held  by   the  County Council of Nakuru, the  plaintiffs were not  the owners of the suit  properties and did   not reside therein; that  the suit properties did   not   form part  of  the  Mau Forest  Complex and neither was it  community property; that the planning and development of  the Nessuit trading centre (where the suit properties fall)  was approved by  members of  the community  and  the  respective  parcels  allocated  to   the persons who had  been residing at  the   shopping  centre. Finally he  deponed that the list  submitted by  the plaintiffs of  alleged members of the Ogiek community was a forgery signed by  relatives of  the  plaintiffs, manufactured  with a view  to file suit and mislead the court.

6.    On    21^st May, 2012 all    parties   agreed that   the application be disposed off by way of written submissions. Only    the  1^st  and 2^nd defendants filed their written submissions on   29^th October, 2012  and  15^th October, 2012 respectively.

7.  The   1^st defendant submitted that the   plaintiffs had not established a  prima  facie case  with  a  probability  of success or  met  the other conditions laid  out in  the case of Giella v  Cassman Brown   &    Co  Ltd. 1973 (EA) 358. It was his contention that the plaintiffs had not presented any evidence showing that they were the owners of the suit properties and were not in occupation of the same. They had also not demonstrated any irreparable loss that  they would suffer and in the  unlikely event  that   they  did, damages would be an adequate remedy as  held in  the case of  J. L. Lavuna And Others V Civil  Servants Housing Co. Ltd.  & Another (1995] eKLR.  Finally they submitted that the balance of convenience tilted towards the defendants as the plaintiffs had not   proved anything other than being members of the Ogiek community.

8. In   their submissions, the 2^nd defendant relied on   the Giella case,the East African Development   Bank v Hyundai Motors Kenya Limited [2006] eKLR case and the case of Elijah Kipng'eno Arap Bii v Kenya Commercial Bank Limited [2002] eKLR.  They   also relied on Sections 29 and 33 of the Physical Planning Act which gives local authorities power to approve development plans.  They submitted that the suit properties having been designated as a trading centre to serve Nessuit settlement scheme had already undergone the planning, surveying and allocation process in  2009 and had been duly approved by  the local community and the  Council.

9.  As submitted by both counsels, there are well  settled principles of law  governing the grant of injunctive orders at an  interlocutory stage laid   out in   the   case  of  Giella vs Cassman Brown  & Co. Ltd (supra)  namely that;

i. The Applicant needs to show that he has a prima facie case with probability of success;

ii. that he  stands to  suffer irreparable damage that cannot be compensated by an award in damages

iii.  if the court is in doubt, it will determine the application on  a balance of convenience.

10.  In the instant case, the   plaintiffs have submitted that that they are the members of the Ogiek community, whose members live on community  land as primarily hunter­ gatherers without title deeds to the land they occupy. It is their contention that the   suit properties form   part of the Mau   Forest Complex, which is the subject of a necessary conservation drive to preserve the fragile ecosystem as well as being a veritable political hot potato.The question remains whether the   plaintiffs have proven that they are the   proprietors of the suit properties despite such obvious challenges as required under Section 107 of the Evidence Act (Cap 80) laws of Kenya which provides:-

"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove those facts exists."

11.  From the affidavit evidence presented by the plaintiffs, I am not satisfied that the plaintiffs have established a prima facie case. They have merely annexed a list of members of the said Ogiek community whose authenticity has been challenged by   the    1^st and 2nd   defendants. On   the other hand, the 1^st defendant has annexed several documents, including a letter from the   area chief (PGL1) which states that the plaintiffs have never owned any of the of the suit properties.  He has further  annexed letters of  allotments issued by  the  2^nd defendant to other individuals (PGL 5 and PG L6)  and  receipts of  rates  and  rent  payments  to   the Council by the allottees (PGL7).

12.  Although the 2^nd defendant did not attach   any supporting documents to their replying affidavit, the facts therein have not been disputed by the plaintiffs.

13.   On   whether the plaintiffs stand to suffer irreparable loss that cannot be compensated by way of damages, I find that the plaintiffs have not demonstrated such loss.

14.  On the third limb of balance of convenience, I find and hold that the balance tilts towards the defendants. The plaintiffs are not in occupation of suit properties. Allotment letters have been annexed by the 1st defendant showing that other members of the Ogiek community have been allocated the suit   properties and   they  have   taken possession. To grant  the   orders  sought  will amount  to evicting those allottees who  are not  parties to  this suit and who  are in  occupation of the  suit properties.

15.   For   the above reasons, the plaintiffs’ notice of motion dated 7th March,   2012 fails and is hereby dismissed with costs to the 1^st and 2^nd defendants.

Dated, Signed and delivered in open Court at Nakuru this 10^th day of December, 2014.

L N WAITHAKA

JUDGE

PRESENT

Mr Kurgat for the 1^st defendant

N I A    for the plaintiff

N I A for the 2^nd defendant

Emmanuel Maelo:   Court Assistant

L N WAITHAKA

JUDGE