IN THE HIGH COURT OF KENYA

AT ELDORET

HCC NO. 25 OF 2005

RULING

On 30^th March 2006, Jepkoech Tapkili Metto (hereinafter “ the plaintiff”),  instituted this suit against Hellen Tum (hereinafter “the 1^st defendant”), David Lelei (hereinafter “the 2^nd defendant”), Barnaba Lelei (hereinafter, the “3^rd Defendant”), Nicholas Kipkorir, (hereinafter “the 4^th Defendant”) and David Kipkemei Mongony (hereinafter “the 5^th Defendant”). She sought the following reliefs:-

The foundation of the plaintiff’s claim was that she was the registered owner of the suit land and in 1987 allowed the 1^st defendant to stay on the suit land with her family as she looked for where to live; that she withdrew and or terminated her license and in 2003, 2004, and 2005 sought the eviction of the 1^st defendant and her family from the suit land; that notwithstanding, the withdrawal/termination of her licence, the 1^st to 5^th defendants continue to trespass on the suit land hence the suit.

Simultaneously with the filing of the plaint, the plaintiff took out a summons in chambers in which she sought an interlocutory order of injunction to restrain the defendants from  entering , re-entering, ploughing, tilling, building any structures, fencing and / or felling trees, leasing out, selling, transferring and / or dealing in any manner whatsoever and/or in any other manner interfering with the possession and / or ownership of the suit land, pending the hearing and determination of the suit. All the defendants filed a joint defence in which they denied the plaintiff’s claim. The 1^st defendant specifically pleaded that she married the plaintiff under Nandi Custom of “Woman to Woman marriage” in 1987 and has since been a lawful wife to the plaintiff. The 2^nd to 5^th defendants averred that they entered the suit land lawfully and consentiously  but that the 5^th defendant had since left the same. In paragraph 10, the defendants pleaded that they have never laid claim to the suit land but the 1^st defendant sought reciprocal quiet possession of the land as the wife of the plaintiff.

The plaintiff appeared ex-pare before Gacheche J., on 31^st march, 2005, and on her being satisfied with the prima facie merits of the application, granted an interim injunction in the terms sought in the application, pending hearing of the application inter-partes. The application does not appear to have been heard inter-partes but the interim order of injunction was extended from time to time.

The application seeks a raft of orders expressed as follows:-

The application is opposed and there is a replying affidavit sworn by the plaintiff. It is deponed in the affidavit, inter alia, that the 1^st defendant is not married to the plaintiff; that the injunction was not issued in favour of the defendants; that the said order was not registered against the suit land; that she has lawfully transferred  the suit land elsewhere and that she required no consent of the 1^st defendant to do so; that she was not duped in the transaction and that the application of the defendants is bad in law.

The application was argued before me on 26^th October, 2011 by Mr. Ngigi, learned counsel for the defendants and Mr. Wafula, learned counsel for the plaintiff. Counsel maintained the positions taken by their clients in their respective affidavits. Counsel for the defendants introduced alleged breach of Constitutional Provisions in his submissions whereas counsel for the plaintiff countered that the matter was not founded on breach of constitutional provisions.

I have considered the pleadings, the application, the affidavits filed and counsels’ submissions. I have also given due consideration to the authorities relied upon by counsel. Having done so, I take the following view of the matter.

The root of the defendants’ application must be in the order of temporary injunction granted on 31^st March, 2005. The said order is exhibited by the defendants as “HTI” to the application. That order reads as follows:-

“It is hereby ordered that:

(2)            A temporary injunction order do issue against the defendants jointly and severally, their family members, agents and or servants by this honourable Court restraining the defendants jointly and severally, their family members, agents and or servants from entering, re-entering, ploughing, tilling, cultivating, planting, grazing, building any structures, fencing and or destroying any fence , felling trees, leasing out , selling, transferring and or dealing in any manner whatsoever and or in any other manner interfering with the possession and or ownership of all that piece and parcel of land known as Nandi/Kilibwoni/1023 pending the hearing and determination of this application.

(3)            Inter-partes hearing on 13^th April, 2005.

That order, as it is self explanatory, was obtained exparte and was given on the plaintiff’s application against the defendants, among other people. The order restrained the defendants,  among other people, from doing the acts specified therein. The order could not restrain the plaintiff in any way. The copy of the order exhibited was not registered against the said land as it does not have the registration stamp of the relevant Land Registry It beats reason that it is the same order upon which the defendants base their application.

          The defendants have not demonstrated that any other order was given in these proceedings restraining the plaintiff from otherwise dealing with her piece of land. I have on my own detected none. As at the time the interlocutory injunction was issued, the suit land was registered in the name of the plaintiff absolutely. I have perused the copy of the Green Card exhibited by the defendants as “HT 2”. The same indicates that on 27^th November, 2009, a restriction was noted on the register of the suit land restricting dealings on the register until this suit is heard and determined. On that date i.e 27^th November, 2009, this court had not issued any order in respect of the suit land. Then there is an entry made on the register that on 3^rd February, 2010, the restriction referred to above was removed vide a court order. The property was on the same date transferred to one Johana Kipkemei whose particulars are given in the register. It is common ground that no order was issued in this suit removing the restriction. Then there is another entry made on 19^th May, 2011, restricting the suit land on the basis of an advocate’s letter.

          Having found that there was no impediment to the transfer of the suit land by the plaintiff to the said Johana Kipkemei, the complaints made by the defendants really have no substance.

          There is therefore no basis to make any of the orders sought by the defendants in their application under consideration.   It would also offend the Rules of natural Justice to make orders against a party who has not been joined in these proceedings. 

          Before concluding this ruling I feel impelled to comment on the defendants’ attempt to invoke the Constitution in this application. The attempt, in my view, would appear to have been an afterthought as nowhere in the pleadings and the application was breach of Constitution alleged. The submissions based on the Constitution therefore  do not deserve a detailed discussion in this ruling.

          It is so ordered.