Charles Mburu Njuguna v Isaac Wanyonyi Kirimocho,Caleb Wanjala Kirimocho & David Kirimocho [2013] KEHC 1430 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL CASE NO. 99 OF 2012

CHARLES MBURU NJUGUNA …………………….……...........……….. PLAINTIFF

VERSUS

ISAAC WANYONYI KIRIMOCHO

CALEB WANJALA KIRIMOCHO

DAVID KIRIMOCHO……………...........................………….……….. DEFENDANTS

RULING

This application dated 9th July 2012 is brought  under  Order 40 Rule 4 of the Civil Procedure Rules and Section 3A of the Civil  Procedure Act.   In it the Applicant  asks the honourable court  to  confirm  the interim orders of injunction  earlier issued restraining the Respondent from carrying out any dealings on the suit land  pending the determination of the suit.

Questions for determination:

Has the application  met the threshold of the principles of granting injunctions as laid down in the renowned  case of Giella Vs.  Cass  Man Brown.

Analysis of the  submissions:

Mr. Juma for the Applicant submitted that the applicant  is the owner  of plot 1A located at Kimilili  Township.

The Applicant acquired the plot by way of purchase.  The applicant submits the Defendants/Respondents  encroached on this  plot and started  digging up  latrines in 2012.  These actions by the defendant will cause  him irreparable  loss.  He urged the court  to allow the application.

Mr. Kassim for the Respondent in opposing the application  submitted the Applicant's plot is not within Kimilili Municipality. In any event, the applicant did not pay the entire purchase of Kshs. 30,000/= that was agreed.

The Respondents  allege the applicants plot is  1D and therefore is not entitled to claim the  plot he is claiming.  In their mind, they were only complying by the notice  from the Public Health which required them to put up toilets.

Determination

From the  pleadings and submissions, it is clear the Defendants/Respondents were digging pit latrines on a portion/plot which the Applicant is claiming.  It is also not disputed that the Defendants family sold a plot to the applicant.  The issue is the location of the  plot bought by the  Applicant. According to the Applicant, his plot is where the  Respondents were digging  the pit latrines.  While  the  Respondents submit the Applicant's plot is outside  Kimilili  Town.

This court finds  it is in the interest of justice to maintain the status quo (balance of convenience) so that both parties do not carry out any dealings on this plot until the suit is heard to determine who owns the suit plot. I therefore  grant prayer 3 of the application thereby issuing a temporary injunction directed to the Defendants/Respondents stopping them from carrying out any developments on the suit land pending the determination of this suit.

To forestall unnecessary applications, being  filed  that would delay the determination of this matter, the applicant   will also not  to develop the suit property until the suit is determined.

The costs of this application to abide out come of the main suit.

RULING DATED, SIGNED, READ AND DELIVERED in open court this 5th

day of   November, 2013.

OMOLLO

JUDGE.