1.The Petitioners filed the notice of motion dated the 28th January, 2022 seeking for the following prayers;
2.The application is based on the seven (7) grounds on its face and supported by the affidavits sworn by Wilson Too, the chairman, on the 28th January, 2022 and 24th February, 2022. The petitioners’ case is that while the parties have been directed to maintain status quo in this petition, the 3rd respondent took surveyors to the suit lands on the 25th December, 2021 to carry out survey work for unknown purposes. That when neighbouring residents went to inquire what was happening on a public holiday, the 3rd respondent personnel reacted by shooting dead three people. The 3rd respondent invaded the suit lands again on the 27th January, 2022 and continued with the survey works, and counting the houses thereon. That as the petition is still pending in court, the 3rd respondent’s activities are likely to irreversibly change the suit lands and render the pending petition nugatory if not stopped.
3.The application is opposed by the 3rd respondent through the replying affidavit sworn by Major Boniface Maina Ombiro on the 17th February, 2022. It is the 3rd respondent’s case that the suit lands the petitioners have claimed were compulsory acquired for military use by the Government vide “gazette notices 2878 and 2879 dated 24/9/76 September 1976, and 710 and 711 from the year 1977”. That the Ministry of Defence was issued with an allotment letter for the acquired land measuring 6,379.07 hectares. That the Ministry of Defence has never surrendered any portion of the said land to the petitioners, and the letter of allotment they rely on were revoked on the 14th June 2006, as well as the title documents that were subsequently issued fraudulently. That the 1st respondent has already determined that the lands in dispute belongs to the 3rd respondent. That the petitioners are squatters on a small part of the suit land measuring 1,500 acres, and that the 3rd Respondent conducts activities on the larger portion of the suit land, but with a lot of interference from the petitioners. That the petitioners have no legal rights over the suit lands, and have not demonstrated a prima facie case. That injunctive orders sought should not issue against the government.
4.Directions on filing and exchanging submissions were issued on the 21st February 2022 and 17th March, 2022, but only the petitioners’ counsel filed theirs dated the 10th March, 2022. It is the petitioners’ submissions that they have established a prima facie case as is outlined in Mrao Ltd v First American Bank Of Kenya Ltd & 2 Others  eKLR for reasons that they are the current registered owners of land parcel No. 27206/3 and 27206/4; that the 3rd Respondent has not denied the activities the petitioners have complained of, but sought to justify their actions by stating that they own the suit land; that Misc. Appl. No. 38 of 2019 had established that the petitioners were in possession of the suit lands, defined the status quo to be maintained by the parties and prohibited the interference with substratum of the subject matter, and that the temporary relief being sought is qualified under Section 16 (1)(1) of the Government Proceedings Act chapter 40 of Laws of Kenya.
5.The following are the issues for the determination by the court;a.Whether the petitioners have met the threshold for the grant of a temporary injunction order.b.Who pays the costs of the application.
6.The court has carefully considered the grounds on the application, the affidavit evidence filed, the submissions by counsel for the petitioners, superior courts decisions cited thereon and come to the following determinations;a.When making a determination whether to issue a temporary injunction, Courts are guided by the principles set out in Giella v Cassman Brown & Co. Ltd  EA 358 at 360 where the Court held as follows:b.I note from the facts as presented in this application that the petitioners have title documents over land parcel reference numbers 27206/3 and 27206/4, whose authenticity is questioned by the 3rd respondent who claim the suit lands were compulsorily acquired by the government for military use. It is trite that when the authenticity of a title document is in question, it is not sufficient for a title holder to only dangle the title document, but they are required to explain the process through which the title document in issue was acquired, as was held in the decision of the Coourt of Appeal in Munyu Maina v Hiram Gathiha Maina  eKLR where the Court held as follows:c.From the facts presented by the petitioners in support of their application, they appear to be of the view that all they needed to prove was the existence of a prima facie case to enable them to secure a temporary injunction order. However, in the case of Kenya Commercial Finance Co. Ltd v Afraha Education Society  VOL. 1 EA 86 the Court held that the three-part test set out in the Giella Case (supra) are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. These three conditions and stages are to be applied as separate, distinct and logical hurdles which an applicant is expected to surmount sequentially. The petitioners have not made any attempt to surmount any of the three aforementioned hurdles, beyond attaching copies of the certificates of searches to the further supporting affidavit. In the case of Susan Wangari Mburu & 5 Others v Eldoret Water And Sanitation Company Limited & Another  eKLR the court held as follows as relates to the manner in which Courts ought to handle application for injunctions:d.Having considered the evidence tendered by the petitioners and the 3rd respondent for and in opposition to the application, and the foregoing decisions of the superior courts, I find that the petitioners have failed to meet the threshold for granting of temporary injunctive order that they sought. That as they have not shown that they are likely to suffer irreparable loss unless the order sought is granted, the court finds it would also not be in the interest of justice for the court to grant an order for injunction prayed. In the circumstances, I find that the petitioners application herein lacks merit and the same is to be dismissed.e.That this being a constitutional petition, and even though the petitioners are not successful in the application, I am of the view justice of the case will be better served by an order that the costs be in the cause.
7.That flowing from above findings, the court orders as follows;a.The petitioners’ application dated the 28th January, 2022 has no merit and is hereby dismissed.b.The costs be in the cause.Orders accordingly.