REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 186 OF 2004
JOSEPH KIAI CHEROTICH………………………..………PLAINTIFF
VERSUS
TIMSALES LIMITED………………………………….…..DEFENDANT
R U L I N G
The applicant filed an application dated 23rd June, 2004 praying for a
temporary injunction to restrain the respondent by itself, its agents and or
servants from cutting down trees, felling logs and trees remaining into or
dealing in whatever manner with the applicant’s parcel of land known as
NAKURU/MARIASHONI/719.
The applicant swore an affidavit in support of his application and deposed
that he was the registered absolute proprietor of the whole parcel of land as
aforesaid measuring 4.2 Hectares and he annexed a copy of his title deed
which was issued to him on July 2nd, 1998. He further deposed that
sometimes in May, 2004 a group of people acting upon the instructions of
the Defendant entered into his aforesaid property and started cutting down
trees thereon indiscriminately. When he tried to stop them from cutting
down trees in his property the following day they came with other people
armed with guns to provide security as they cut down more trees and they
continued to do so until the applicant obtained temporary restraining orders
from this court.
The applicant lamented that the respondent’s acts amounted to trespass and
malicious damage to his property and so urged the court to grant the orders
as sought.
The respondent defended the said application and filed a replying affidavit
through one Mr. Walter Ogada, the Operations Manager at Elburgon forestry
Division. He deposed that the respondent was a limited liability company
whose main objective was the harvesting of forest products with a view to
making wooden products and that it did not own the suit land or any land in
the area complained of by the applicant but depended entirely on harvesting
Government forest products upon an agreement to pay to the Government
the requisite royalties. He annexed documents which showed that the
respondent had paid to the forest Department of the Ministry of
Environment, National Resources and Wildlife Kshs.500,000/- as licence
fees for harvesting forest products. The respondent annexed a letter dated 7th
November, 2003, exhibit WO2 addressed to Mr. N. Mehta, General Manager
of Comply Industries Ltd by the Permanent Secretary of the aforesaid
Ministry showing that the said company had been allowed to harvest forest
products at Mariashoni Station and Bahati Station. The relationship between
the said company and Timsales Limited (the Defendant) was not explained.
However, the said letter showed that Comply Industries Limited had been
granted permission to harvest forest products from 3 different locations of
Mariashoni Station, the same being Mariashoni 11B measuring 16.0
Hectares, Mariashoni 11D measuring 34.0 Hectares and Mariashoni 11 E
measuring 31.0 Hectares.
Mr. Ogada further deposed that as far as the Defendant was concerned all
that land comprised in Mariashoni Station and Bahati Station was
Government land and not belonging to anyone. The respondent said that it
did not know that anybody had been allocated private land in Mariashoni
area and it was unable to state with particularity where the plaintiff’s land
was located and that it should have been the duty of the Plaintiff to fix clear
beacons defining his land. The deponent further deposed that the Defendant
had no interest in the suit land whatsoever other than exercising its right to
harvest forest products and stated that the plaintiff’s recourse was as against
the Government. The respondent contended that it had paid royalties to the
Government in respect of the trees in the aforesaid land parcels and so it was
entitled to harvest all the trees therein without any interference whatsoever.
Mr. Ogada also deposed that if the injunction was granted as prayed, the
Defendant stood to suffer irreparably as the factory risked being ground to a
halt while it had to pay its workers totaling to 1,500/-.
In his submissions, Mr. Karanja for the applicant stated that the land in
question belonged to the Plaintiff and not the Government of Kenya and the
respondent was interfering with private property. He further submitted that
the Plaintiff stood to suffer irreparable loss unless the orders sought were
granted because the trees on the land would be destroyed and further, the
applicant had sentimental attachment to the land with its trees. Counsel also
submitted that the balance of convenience was in favour of the Plaintiff as
the Respondent could cut down trees in other areas.
Mrs. Odhiambo for the respondent submitted that the applicant had not
shown how he acquired the land saying that the title had not been acquired
procedurally. She contended that the title deed was only prima facie
evidence of ownership of the land and submitted that the applicant should
have joined to the suit other defendants like the Commissioner of Lands and
the Attorney General. Counsel further contended that no prima facie case
had been shown against the respondent and the applicant had not shown that
he stood to suffer irreparable loss if the orders sought were not granted.
I have considered all the issues raised by the parties as well as the
submissions by counsel. It is not in dispute that the plaintiff is the registered
absolute proprietor of the suit premises and the Title Deed was issued to him
on 2nd July, 1998. The definition of land includes trees which may be
growing on the land. All the documents relating to payment of royalties and
permission to harvest the forest products which the respondent annexed to its
replying affidavit were issued sometimes in 2004 long after the plaintiff
acquired his title to the suit premises. The respondent does not have the
capacity to question the manner in which the applicant acquired his Title
Deed to the land in question and the validity of the applicant’s Title Deed is
not in issue. The applicant had a right to protect the trees on his land from
being destroyed by the respondent. I believe that the applicant knows the
extent of his land which is 4.2 Hectares. It is easy to show out the
boundaries thereof and determine whether it falls within the area on which
the respondent was licenced to carry out its activities of harvesting forest
products. In the event that it does, the Forest Department would have acted
improperly in including the same because it had no power to interfere with
private property.
The applicant has established a prima facie case with a likelihood of success
as against the Defendant and I am in agreement with the applicant that
unless the orders sought are granted the applicant will suffer irreparable loss
as all the tree on his land will be cut down and ferried away by the
respondent. The applicant has therefore satisfied the first two tests for grant
of interlocutory injunctions as per the celebrated decision of GIELLA VS
CASSMAN BROWN & CO. LTD [1973] E.A. 358.
I do not need to consider the balance of convenience as I have no doubt that
the applicant has satisfied the above two tests. However, if I were to
consider the application on that issue, I would hold that the balance of
convenience tilts in favour of the applicant whose land stands to be
destroyed irreparably whereas the respondent can continue to harvest forest
products in the other areas excluding on the 4.2 Hectares owned by the
applicant.
In conclusion, I grant the orders as sought by the applicant and direct him to
mark out the boundaries of his land if the same are not clear so that the
respondent may exclude it from its operations. The costs of this application
are awarded to the applicant.
DATED, SIGNED & DELIVERED at Nakuru this 19th day of October,
2004.
DANIEL MUSINGA
AG. JUDGE
19/10/2004
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