REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC CASE NO. 75 OF 2020

JOHN MUGO NJERU....................................................................1^ST PLAINTIFF

BYRON KANYU...........................................................................2^ND PLAINTIFF

JOHN MUSWANYI......................................................................3^RD PLAINTIFF

VICTOR MUIRU...........................................................................4^TH PLAINTIFF

VERSUS

MICT NAIROBI LIMITED................................................................DEFENDANT

RULING

1. The 1^st Plaintiff / Applicant has a power of attorney and authority to plead on behalf of the 2^nd, 3^rd 4^th Plaintiffs/Applicants. The authority to plead was filed after this case had been filed. The Applicants contend that they are the registered owners of LR No.12017 (suit property) which is 15.31 hectares which is near Syokimau SGR station in Embakasi area of Nairobi. The Applicants state that the suit property was allocated to them on 1^st July 1998. They processed title over the same which title was registered in their names on 4^th February 2005.

2. In or around the month of April 2020, the Defendant/Respondent which is now known as Syokimau ICD Limited following change of name trespassed on to the suit property and claimed ownership of part of the same allegedly on the basis of a lease from Kenya Railways Corporation which claims to be owner of the portion of the suit property which is held on leasehold basis by the Respondent. The Applicants contend that the Respondent has started erecting structures on part of the suit property and that unless an injunction is issued in favour of the Applicants, they will suffer loss which may not be compensatable in damages.

3. The Applicants contend that they engaged the services of a surveyor who confirmed that indeed the Respondent has encroached on to part of the suit property where it is continuing to erect structures.

4. The Respondent opposed the Applicants’ application arguing that it has a lease of 15 years with effect from 29^th November 2018 in respect of 15 acres of Kenya Railways land at Embakasi area which is unsurveyed. The Respondent contends that following the signing of the lease, it moved into the portion leased to it and is in the process of construction a multimillion in land container depot to be used by the new SGR at Syokimau.

5. The Respondent contends that the suit property had been registered in 1969 and that in 1971, the land was compulsorily acquired for the construction of Nairobi Airport. The Respondent further contends that the same land’s title was surrendered in favour of a sub-division scheme whereby the same was sub-divided and allocated to individuals and entities. During the construction of the Standard Gauge Railway and Syokimau Railway Station, Kenya Railways compulsorily acquired part of the suit property a portion of which it leased to the Respondent.

6. The Respondent further contends that in 2011, Kenya Railways Corporation acquired some three parcels vide gazette Notice No.7673 of 8^th July 2011. The three parcels with a combined acreage of 5.353 hectares which translates to about 13.227acres belonged to Laxmanbhai construction limited. Again in 2015, Kenya Railways Corporation further acquired more properties vide Gazette Notice No.1991 of 27^th March 2015.

7. The Respondent therefore argues that the entire suit property having been compulsorily acquired in 1971 vide two Gazette Notices namely Gazette Notice No.1105 of 30^th April 1971 and gazette Notice No. 1106 of 30^th April 1971, there is no way the same land would have been subject of a new allotment on 1^st July 1998 whose title was issued on 4^th February 2005. The Respondent contends that the Applicants must have colluded with Ministry of Lands officials and the Director of survey who took the original deed plan prepared in 1969, changed it and purported to re-survey the property thus generating the title held by the Applicants which they contend is a forgery. The Respondent contends that the 1^st Applicant is a known land fraudster as shown in reports from newspapers where his name has been mentioned in connection with Mega land scandals including claims of fraudulent compensation claims.

8. I have carefully gone through the Applicants’ application as well the opposition thereto by the Respondent. I have also gone through the submissions by the parties herein. The only issue for determination herein is whether the Applicants have met the threshold for grant of an injunction in the manner prayed for.

9. The principles for grant of a temporary injunction were clearly set out in the case of Giella Vs Casman Brown & Co.Ltd (1973) EA 358. First an applicant has to demonstrate that he has a prima facie case with probability of success. Second, an injunction will not normally issue if the loss the applicant will suffer will be capable of compensation. Third, if the court is in doubt, it will decide the application on a balance of convenience.

10. A prima facie case was defined in the case of Mrao Vs First American Bank of Kenya Limited & 2 Others ( 2003) KLR 125 as follows;-

“A prima facie case in a civil application includes but is not limited to a genuine and arguable case. It is a case which, on the material presented to the court, a tribunal properly directing itself concludes that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

11. In considering whether an applicant has established a prima facie case, the Court of Appeal has cautioned that a court should not conduct a mini trial or closely examine the documents as to reach final conclusions. In the case of Nguruman Ltd Vs Jan Bonde Nielsen & 2 Others (2014)e KLR the Court of Appeal stated thus:-

“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 on the face of it the person applying for injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The Applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of a prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that the court takes the view that on the face of the Applicant’s case is more likely than not to ultimately succeed”.

12. In the instant, case the materials placed before the court show that the suit property had been surveyed in 1969 and the current parcel No. given as LR No.12017. In 1971, it was the subject of compulsory acquisition. It’s extent then was 15.27 hectares which is 37.74 acres. The same land is now held by the Applicants under LR No.12017 IR 105254 which is 15.31. hectares. The question which will have to be interrogated later on is whether land which had had been subject of compulsory acquisition in 1971 could again be available for fresh allocation in 1998. This is more so because the Applicants did not place before the court any materials to show that there was a surrender of the acquired property as to be available for fresh allocation.

13. The Respondent has placed materials before the Court to show that the space leased to it was as a result of parcels which were compulsorily acquired from Laxmanbhai Construction Limited and Sato Nyumbaz whose 1.600 hectares was subject of compulsory acquisition of its land LR No.24910 through Gazette Notice No.11257 of 16^th September 2011.

14. When the Kenya Railways Corporation asked the Ministry of Lands to commence the process of compulsory acquisition, the Ministry wrote back and informed the corporation that they could not trace ownership documents for persons whose parcels were to be acquired. The Ministry then asked the corporation to ask the owners to provide copies of title. This is the basis upon which the compulsory acquisition commenced because one of the affected companies was Laxmanbhai Construction Company which provided copies of title for their properties. Sato Nyumbaz also provided its plot number which is LR No.24910.

15. Though the acquired parcels had been registered, it is not known how the same could become un-surveyed land which was later leased to the Respondent. This is better left for the main hearing. The suit property is over 37 acres. The portion leased to the Respondent is 15 acres. As I have already said hereinabove, the suit property was subject of compulsory acquisition in 1971. It is not clear again how the same property would later on become available for fresh allocation almost three decades later. With this in mind, I do find that the Applicants have demonstrated that they have a prima facie case with probability of success.

16. The entire acreage of the property claimed by the Applicants is over 37 acres. The Respondent has leased 15 acres which is less than half of what the Applicants claim to have. The Respondent has already entered the 15 acres leased and has constructed on the same as confirmed by the photographs annexed to the supporting affidavit. The portion of their property which is in contention is capable of valuation and they can be compensated if they succeed. Alternatively, the constructed portion can be demolished and restored to its original status. The Respondent has built a large area with cabros which can be used as a dry land port.

17. Even on a balance of convenience, the balance tilts in favour of the Respondent which is already in possession based on a lease from Kenya Railways Corporation. Whether the lease is a valid lease or not is not a subject for determination under this ruling. I therefore find that the Applicants’ application fails the threshold in the case of Giella Vs Cassman Brown & Co.Ltd (supra) . I proceed to dismiss the application with costs to the Respondent.

It is so ordered.

Dated, Signed and Delivered at Nairobi on this 7^th day of December 2020.

E.O.OBAGA

JUDGE

In the Virtual presence of:-

Mr Obuya for Mr Ochieng Oduol for Defendant

Mr Nyanyuki for Plaintiff

Court Assistant: Hilda

E.O.OBAGA

JUDGE