Ainea Mudanya Onzore v Kenneth Imidi Otwele sued as the Administrator and legal representative of the estate of Agnes Lukusa (Deceased) [2017] KEELC 2235 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC NO. 297 OF 2015 (O.S)

AINEA MUDANYA ONZORE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

KENNETH IMIDI OTWELEsued as the Administrator and legal

representative of the estate ofAGNES LUKUSA (DECEASED) :::::::::::RESPONDENT

RULING

This application is dated 23rd November 2015 and is brought under order 40 rule 1 (A) of the Civil Procedure Rules and section 1A, 3A, 63 (C) & E of the Civil Procedure Act and section 68 of the Land Registration Act, 2012 seeking the following orders;

1. That an inhibition and or prohibitory order be issued against title NO. KAKAMEGA/KEGOYE/1126 to preserve it pending the hearing and determination of this suit.

2. That an order of injunction be issued against the respondent restraining him either by himself or through his relatives, employees and or agents from alienating, selling or offering for sale, laying claim to, trespassing onto, utilizing, developing, constructing on, carrying out any works on and or in any other manner dealing with land parcel NO. KAKAMEGA/KEGOYE/1126 and or interfering with the applicant’s possession, occupation and use of the said parcel of land pending the hearing and determination of this suit.

3. That alternatively, the status quo prevailing on the parcel of land NO. L.R. KAKAMEGA/KEGOYE/1126 at the time of institution of this suit be maintained pending the determination of this suit.

4. Costs of this application be provided for.

The application is based on the annexed affidavit of AINEA MUDANYA ONZORE applicant and on the following principal grounds; the applicant has been in exclusive, peaceful and quiet occupation and use of LR. NO. KAKAMEGA/KEGOYE/1126 from 1974 and has and continues to solely occupy and use the said parcel of land exclusively, openly, notoriously, peacefully and uninterrupted to-date. The respondent is threatening to sell and or alienate, trespass onto land parcel NO. KAKAMEGA/KEGOYE/1126, evict or stop or interfere with the applicant’s use thereof and thereby alter the character of the suit land which will negate this suit and occasion the applicant immeasurable loss, damage and hardship.

The applicant submitted that she has had vacant, exclusive, peaceful, open and continuous occupation and use of land parcel NO. KAKAMEGA/KEGOYE/1126 from 1974 to-date and she have filed the present suit claiming adverse possession of the said parcel of land and title. That the said parcel of land is registered in the name of Agnes Lusuka who is deceased and she has sued the respondent herein who is the personal representative of the estate of the said deceased having been so appointed vide Vihiga PM Succession Cause No. 14 of 2015. (Attached hereto are copies of the register of the suit title and the grant issued to the respondent, respectively marked “AMO1” and “AMO2”).  The respondent has never occupied or used the suit land parcel NO. KAKAMEGA/KEGOYE/1126 or interfered with her exclusive possession and use thereof but he and his agents are now threatening to trespass on, alienate, sell or transfer the suit land and or interfere with her use thereof which will occasion her irreparable loss and damage. That she has had exclusive possession and use of the suit land for over 12 years and the respondent’s threatened actions are unlawful, illegal and improper and he ought to be restrained so that the applicant can continue to peacefully occupy and utilize the suit land until this case is determined otherwise it will be negated.

This court has considered the plaintiff/applicant’s submissions and the supporting affidavit therein. The respondent has not filed ant grounds in opposition and the matter proceeded exparte. The application being one that seeks injunctions, has to be considered within the principles  set out in the case of  GIELLA  VS  CASSMAN BROWN & CO. LTD  1973  E.A   358  and which are:-

1. The applicant must show a prima facie case with a probability of success at the trial

2. The applicant must show that unless the order is granted, he will suffer loss which cannot be adequately compensated in damages and,

3. If in doubt, the Court will decide the application on a balance of convenience.

It must also be added that an interlocutory injunction is an equitable relief and the Court may decline to grant it if it can be shown that the applicant’s conduct pertinent to the subject matter of the suit does not meet the approval of a Court of equity.

The applicant submitted that she has had vacant, exclusive, peaceful, open and continuous occupation and use of land parcel NO. KAKAMEGA/KEGOYE/1126 from 1974 to-date and she have filed the present suit claiming adverse possession of the said parcel of land and title. She submits that the said parcel of land is registered in the name of Agnes Lusuka who is deceased and she has sued the respondent herein who is the personal representative of the estate of the said deceased having been so appointed vide Vihiga PM Succession Cause No. 14 of 2015. (Attached hereto are copies of the register of the suit title and the grant issued to the respondent, respectively marked “AMO1” and “AMO2”).  It is her submission that respondent has never occupied or used the suit land parcel NO. KAKAMEGA/KEGOYE/1126 or interfered with her exclusive possession and use thereof but he and his agents are now threatening to trespass on, alienate, sell or transfer the suit land and or interfere with her use thereof which will occasion her irreparable loss and damage. These submissions were never challenged and I find that the applicant has established a prima facie case with a probability of success at the trial and has shown that unless the order is granted, he will suffer loss which cannot be adequately compensated in damages. I therefore grant the following orders;

1. That an inhibition and or prohibitory order be issued against title NO. KAKAMEGA/KEGOYE/1126 to preserve it pending the hearing and determination of this suit.

2. That an order of injunction be issued against the respondent restraining him either by himself or through his relatives, employees and or agents from alienating, selling or offering for sale, laying claim to, trespassing onto, utilizing, developing, constructing on, carrying out any works on and or in any other manner dealing with land parcel NO. KAKAMEGA/KEGOYE/1126 and or interfering with the applicant’s possession, occupation and use of the said parcel of land pending the hearing and determination of this suit.

3. Costs of this application be in the cause.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 26TH DAY OF JULY 2017.

N. A. MATHEKA

JUDGE