REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KWALE

ELC NO E004 OF 2021

DIANA BUKACHI.................................................................PLAINTIFF

VERSUS

DIANI BEACHALETS [2003] LIMITED.........................DEFENDANT

RULING

1        The Plaintiff filed together with the Plaint a Notice of Motion application dated 13^th October 2021. The application seeks the following orders;-

a)  Spent

b)  That pending interparties hearing of this application, the respondent whether by themselves, agents, servants, or anyone acting on their behalf in any way be restrained from blocking the beach access, putting any barrier or structure or otherwise dealing in any manner likely to hinder, limit the plaintiff and or her agents, employees or anyone acting on her behalf from accessing the beach using the footpath adjacent to land reference no Kwale/Diani Beach Block/1813,Kwale/Diani Beach Block 1814 and Kwale/Diani Beach Block/1815.

c)  That pending interparties hearing of this suit, the respondent whether by themselves, agents, servants, or anyone acting on their behalf in any way be restrained from blocking the beach access, putting any barrier or structure or otherwise dealing in any manner likely to hinder, limit the plaintiff and or her agents, employees or anyone acting on her behalf from accessing the beach using the footpath adjacent to land reference no Kwale/Diani Beach Block/1813,Kwale/Diani Beach Block 1814 and Kwale/Diani Beach Block/1815.

d)  That the officer commanding station [OCS]Diani Police Station be ordered to ensure compliance with order 2 and 3 above.

e)  That costs of this application be in cause

2        The application is supported by the affidavit sworn by Diana Bukachi the Plaintiff. The plaintiff avers that she is the registered owner of Land Parcel No Kwale/Diani Beach Block/1813 (herein the suit property) which she purchased from the Respondent after subdivision of the Respondents parcel Kwale/Diani Beach Block/1554. She stated that clause 3.6 of the sale agreement dated 23/9/2011 provided that the Applicant would be granted beach access footpath(easement) which was to be registered against the land register of the adjacent properties Kwale/Diani Beach Block 1813 and Kwale/Diani Beach Block 1814. That the deed of easement was prepared by the Applicants lawyers, executed by both parties but were misplaced at the Land Registry while awaiting registration. Another set of the documents was prepared on the advise of the Registrar however the Respondent despite numerous demands refused to execute the deeds of easement and facilitate registration of the same. Further that the Respondent subsequently blocked the beach access preventing the Applicant from accessing the beach. The Applicant averred that she has been deprived of her right to quiet and peaceful enjoyment of her property and that she has suffered loss and continues to suffer loss which cannot be adequately compensated by damages. She prayed for the application to be allowed.

3        The application was opposed vide a replying affidavit sworn by Dorothy Carson a Director of the defendant Respondent. She confirmed that she entered into the sale agreement herein and that the easement discussions did not begin until the sub division process was finalized. It was stated that after execution of the agreement the applicant without informing the Respondent demolished some bandas within the suit property that had been agreed would be used by the Applicant to run a bed and breakfast business and the remainder of the plot used to build the applicant’s residential house.

4        It was also confirmed that the parties executed the easement documents in 2014 which got lost before registration. The Respondent stated that they were reluctant to pay another sum for registration. Further that they had agreed with the Applicant that her business would not be in competition with the Respondents business, that beach access granted was for residential use. That it became a concern to the Respondents when the Applicant allowed access third parties with unknown people getting access of the Respondents properties. That the applicant further put up an advert for her cottages [Kiani Cottages] which was a breach of their agreement and also tried to sell the same. That the suit premises were leased between 2015-2020 but the tenants reached an agreement with the Respondents on who could access the beach and until they moved out the agreement had been working well. According to the Respondents the access was closed after the tenants left as the applicant was not in occupation of the suit property.  That the nature of the business carried out by the respondents required maximum security and it posed a great danger to the business if strangers were allowed the access.

5        On 6^th December 2021 I gave directions to the effect that the application would be canvassed by way of written submissions.

APPLICANT’S SUBMISSIONS

6        The Applicants’ submissions were filed before court on 13/1/2022. Counsel for the Applicant submitted that the Respondent had admitted breach of the agreement for provision of beach access. That clause 3.6 of the agreement and which provided for the easement was unconditional and the Respondents did not have any justification to breach the same.

7        Counsel set down the principles for grant of an interim order of injunction as was laid out in the case of Giella Versus Cassman Brown (1974) EA 358 and contended that the Applicant had established there was a contract for sale of land and for the beach access.  On what amounted to a prima facie case reliance was placed on the definition of the same in the case of Mrao Limited V First American Bank of Kenya Limited & 2 Others [2003] eKLR.  Relying on Waithaka V Industrial and Commercial Development Corporation [2001] eKLR  it was submitted that the Applicant had suffered and continues to suffer irreparable harm that cannot be compensated by damages by the continuous breach of the terms of the agreement by the Respondent. Counsel urged that the Respondent had not demonstrated they will be in a position to adequately compensate the applicant and that even if they were in a position to do so the breach was continuous an exception that warranted an order of injunction to issue. The applicant submitted for the application to be allowed as prayed.

RESPONDENTS SUBMISSIONS

8        The Respondents submissions are dated 12/1/2022. It was submitted that the parties herein had set out terms and conditions to be followed in the easement and in case of any breach the Respondent had the liberty to cancel the same. That the Applicant had not been residing on the suit premises from the time of purchase to the year 2020 when she moved in. It was the Respondent’s submission that the easement was closed for security reasons as the Applicant had started issuing the key to strangers who could leave the gate open leading to loss of valuables owned by the Respondent.  Counsel framed the following issues for determination Whether the Applicant had demonstrated a prima facie case with probability of success, Whether the applicant was entitled to easement, Whether the applicant is in breach of the easement contract and Whether the Applicant was entitled to the reliefs sought and whether she will suffer irreparable loss.

9        On whether the Applicant had demonstrated a prima facie case it was submitted that the Applicant had failed to do so as they had not met all three conditions which had to be established by an applicant before grant of orders. These were establish case at a prima facie level, demonstrate irreparable injury if the temporary injunction is not granted and, in any doubt, show the balance of convenience is in her favour. Counsel cited the holding of the Court Appeal in  Eastern Produce Kenya Limited V Chepsire[Savani] Farmers’ Co-Operative Society Limited[2007] and  Marsh View Limited V Benvar Estates Limited [2020]eKLR  to buttress this argument.

10      On whether the Applicant was entitled to the easement it was submitted that several terms and conditions were agreed upon in the easement but the same was not registered as the documents got lost as alleged by the Applicant. That a request was made for a second batch of documents to be done for the easement to be registered but  the Respondent could not make another payment for the registration as they had initially facilitated registration of the first documents.  It is the Respondent’s submission that to date the easement had not been registered and in return the Applicant had come to court claiming that the Respondent had refused to execute the deed of easement for registration.

11       On whether the applicant was in breach of the easement, it was stated that the easement was granted for residential use, however the Applicant did not put it into such use but gave access to other persons and which was a clear breach of the agreement. The Respondent cited clause 4 of the agreement which stated that the same would terminate immediately if the Applicant constructed more than two one-bedroom residential units and one three-bedroom residential units. This had also been breached by the Applicant. It was further urged that the Applicant while advertising sell of the property included the beach access which the Respondent felt was a right that cannot pass on the sale of the property.

12      On whether the Applicant was entitled to the relief sought and whether she would suffer irreparable loss it was submitted that the Applicant failed to pay the advocate tasked with reparation of the lease documents, that the applicant also had an alternative route to the beach access and would therefore not suffer any injury. The respondent urged the court to dismiss the application.

ANALYSIS AND DETERMINATION

13      I have considered the application, the replies thereto, submissions filed by Counsel on behalf of their respective clients and authorities cited.  In my view the issues for determination is whether the orders sought should issue.  The application has been filed under the provisions of Order 40 Rule 2 of the Civil Procedure Rules which stipulates as follows:

2. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The court may by order grant such injunction on such terms as to an inquiry as to damages, the duration of the injunction, keeping an account, giving security or otherwise, as the court deems fit.

From the foregoing the Plaintiff is clearly seeking for orders of injunction and must satisfy the  three  principles for granting a temporary injunction set out in the case of Giella vs Cassman Brown (1973) EA 358.  Firstly, an Applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages, and thirdly, if the Court is in doubt, it will decide an application on a balance of convenience.

14     As to establishment of a Prima facie case the Applicant has produced before this court a copy of the certificate of Lease issued on 6/6/2014 for Kwale Diani Beach Block 1813 registered in her name. I have also seen the sale agreement between the Defendant and the Plaintiff dated 23^rd September 2011 produced by the applicant. It is clear that the Plaintiff   purchased the property being a portion of the Defendants land and this is also not disputed by the Plaintiff. Clause 3.6 of this agreement states ‘…..upon successful subdivision of the property and provision of a beach footpath by the vendor by way of an access easement on Land Reference Number Kwale Diani Beach Block/1154 as per the annexed schedule marked as ‘Easement’.  It has been shown that the defendant’s adjacent plots were the dominant plots. The Plaintiff has also demonstrated that the easement was provided on the ground though not registered but latter denied or closed by the Respondents which fact has been admitted by the Respondents in their replying affidavit. Based on this and without getting into the merits of the Plaintiffs case it is this courts view that the Applicant has established a prima facie case.

15   As held by the court in Mrao Limited V First American Bank of Kenya Limited & 2 Others (supra) establishing a prima facie case is not enough. An Applicant must also demonstrate that they stand to suffer loss that cannot be compensated by way of damages if the injunction sought is not granted, this is to say irreparable loss. According to the Applicant herein it has been contended that they suffer and will continue to suffer irreparable harm by the continuous breach of the terms of the agreement by the Respondent. That the continuous nature of the breach warranted that the orders sought are issued. Halsbury’s Laws of England [Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352.] has given some insights into this subject as follows; -

“It is the very first principle of injunction law that prima facie the court will not grant an injunction to restrain an actionable wrong for which damages are the proper remedy. Where the court interferes by way of an injunction to prevent an injury in respect of which there is a legal remedy, it does so upon two distinct grounds first, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages. Even where the injury is capable of compensation in damages an injunction may be granted, if the act in respect of which relief is sought is likely to destroy the subject matter in question”

In order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured. Also see Paul Gitonga Wanjau Vs Gathuti Tea Factory  Company Ltd & Two Others (2016) eKLR.

16   Having considered the Applicants case and submissions I’m not persuaded that the alleged damage is incapable of compensation. Assuming that it is indeed true that the Plaintiff is running a B& B business then the damage can be quantified by comparing the business income trends before closure and after closure of the access to the beach. Moreover, the Applicant has clearly deposed that there was an alternative route to the beach access and this is my view mitigate the damage. This court has noted from the facts and material placed before it that the close of the access continues and has not been resolved. While is it contended that the breach is continuous and thus presenting the exception to grant the orders of an injunction even where the damages are capable of being compensated, this court must be convinced that there are special circumstances. No special circumstances have been presented by the applicant. Clearly there are issues that need to be litigated and resolved once and for all for good neighborliness and granting the orders sought will effectively determine this suit prematurely. See the holding in Joseph Kaloki T/A Royal Family Assembly Vs. Nancy Atieno Ouma (2020) eKLR referred to in Samuel Njogu Kamotho & 43 Others v Kenya African National Union (Kanu) [2020] Eklr.

17   I will proceed to look at the balance of convenience. In the case of Paul Gitonga Wanjau vs. Gathuthis Tea Factor Company Ltd &2 others (2016) eKLR, the court dealing with the issue on balance of convenience expressed itself thus:

Where any doubt exists as to the applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would suffer if the injunction was granted and he should ultimately turn out to be right and that which injury the applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will suffer the greater harm with the outcome of the motion. If applicant has a strong case on the merits or there is significant irreparable harm, it may influence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance on convenience lies.’

18      The easement has to date not been registered as the first set of documents to facilitate registration of the same got lost and the fresh replacement set of documents has never been signed. The access remains closed. A lot has been stated in the affidavits but for now this court will not focus on issues that are the subject of the trial court or full hearing. I will focus on ensuring that the interests of the parties are balanced with regard to the access to the beach. I have noted that currently the Applicant has been accessing the beach by alternative access and in my view this status quo should remain as such considering that it has been deposed that the Plaintiff does not reside full time on the suit property and even if they were in any position would not change. The Respondent has deposed in their replying affidavit that they have previously allowed the Applicants tenants access with conditions focusing on the security of the parties. That they have not had a problem with this arrangement as long as the conditions were met. It is trite that easements are granted subject to   conditions, limitations or even restrictions. In this regard this should be the arrangements that will be put in place whenever there are guests/tenants at the Applicants premises and in view of the security concerns. The rest of the issues shall await the hearing and determination of the dispute.

19      The orders that commend to be issued to dispose of the Notice of Motion application dated 13^th October 2021 shall be as follows; -

a)  That pending the hearing and determination of this suit and in view of security concerns, the beach access gate shall remain closed. The Defendant Respondent shall make available for use by the Plaintiffs tenants subject to acceptance and compliance with conditions that shall be laid out by the Defendant on the use of the beach access gate.

b)  Costs shall be in the cause.

DELIVERED AND DATED AT KWALE THIS 25TH DAY OF MARCH, 2022.

A.E. DENA

JUDGE

Ruling delivered virtually through Microsoft teams Video Conferencing Platform in the presence of:

Ms Njogu………………………………………………..… .for the Defendant Respondent

Non Appearance ………………………………………………..for the Plaintiff Applicant

Mr. Denis Mwakina………………………………………………...………. Court Assistant.