Mwangi v Njoroge & 4 others (Environment & Land Case E011 of 2023)  KEELC 16294 (KLR) (15 March 2023) (Ruling)
Neutral citation:  KEELC 16294 (KLR)
Republic of Kenya
Environment & Land Case E011 of 2023
FM Njoroge, J
March 15, 2023
Susan Wanjiru Mwangi
Stephen Kimani Njoroge
Director Of Surveys
Naivasha District Land Registrar
Sub-County Land Adjudication and Settlement Officer, Naivasha
1.This ruling is in respect of the plaintiff’s Notice of Motion application dated February 23, 2023 brought under Section 19(2) of the Environment and Land Court Act, Order 40 Rule 1, 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act which sought for the following orders;a.Spentb.Spentc.Spentd.That the 1st and 2nd respondents either by themselves, their servants, employees and/or agents be restrained from entering, occupying, cultivating, taking possession, remaining on, alienating and/or in any manner dealing with Land Reference Number Naivasha/Kiambogo Scheme/623 pending the hearing and determination of this suit.e.An inhibitory order be and is hereby granted restraining the 3rd, 4th and 5th respondents from effecting any changes to the records pertaining to the parcel of land Naivasha/Kiambogo Scheme/623 pending the hearing and determination of this suit.f.That the costs of this application be provided for.
2.The application is supported by the affidavit of Susan Wanjiru Mwangi sworn on February 23, 2023. The grounds on the face of the application and the supporting affidavit are that the plaintiff is the registered owner of land parcel No Naivasha/Kiambogo Scheme/623; that she was allocated the suit property on October 29, 1983 by the Settlement Officer, Nakuru; that upon allocation, she was shown the parcel with the demarcations and the relevant beacons; that upon allocation, the suit property was charged to the Settlement Fund Trustees for Kshs 6,102 and she was to clear the amount as per the charge document; that she paid the amount in full; that she was issued with a title deed that had an error on the acreage; that because of her age she did not realize the error immediately; that she has been in occupation since the land was allocated to her; that on February 02, 2023, the 1st and 2nd defendants entered the suit property and started to erect a fence; that when she called for help they ran away; that they came back on February 11, 2023 with a group of ten people and fenced off a portion of the suit property by force; that she tried to protest but was threatened with machetes and clubs among other crude objects; that she has been in occupation since the year 1983 and she prays for the orders sought in the application to protect her land and for her own safety.
3.Neither of the defendants filed a response to the application and none of the parties filed their submissions.
Analysis and Determination
4.After considering the application, the only issue that arises for determination is whether the plaintiff has met the criteria for grant of an order of temporary injunction pending the hearing and determination of this suit.
5.The Court of Appeal in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No 77 of 2012 (2014) eKLR restated the principles for the grant of orders of temporary injunction as was set out in the case of Giella Versus Cassman Brown (1973) EA 358 as follows: -
6.The plaintiff in this matter has to prove that she has a prima facie case. The Court in the case of Mrao Ltd Versus First American Bank of Kenya Ltd (2003) stated as follows on what constitutes a prima facie case: -
7.In support of her application, the plaintiff has annexed a copy of the title deed of the suit property which is registered in her name. It is my view therefore, that the plaintiff has established a prima facie case.
8.Secondly, the plaintiff must demonstrate that she will suffer irreparable injury if the order of temporary injunction is not granted. The court in the case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai  eKLR stated as follows;
9.The plaintiff alleges that she has been in occupation of the suit property since the year 1983 and that the 1st and 2nd defendants have fenced off a portion of her land. That when she protested against the fencing of the suit property, the defendants and the people accompanying them threatened her with crude weapons. It is my view that the plaintiff has not demonstrated that irreparable loss will be occasioned to her if the orders sought are not granted.
10.I must therefore apply the third test, namely, whether the plaintiff has demonstrated that the balance of convenience tilts in her favour. The court in the case of Paul Gitonga Wanjau Vs Gathuthi Tea Factory Company Ltd & 2 others (2016) eKLR held as follows;
11.It is my view that in this matter, the balance of convenience tilts in favour of the plaintiff. Consequently, the application dated February 23, 2023 has merit and it is hereby allowed in terms of prayers No 4 and 5 thereof. The costs of the application shall be borne by the defendants in any event.
12.This suit shall be mentioned on April 27, 2023 to confirm compliance and for the issuing of a hearing date.
DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 15TH DAY OF MARCH 2023.MWANGI NJOROGEJUDGE, ELC, NAKURU