DIXON RETENGE vs KIMOI CHELEL [2004] KEHC 1987 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT ELDORET

CIVIL SUIT NO.28 OF 2004

DIXON RETENGE ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

KIMOI CHELEL :::::::::::::::::::::::::::::::::::::::::::::: ::::::::::::::::::::::::::::::::: DEFENDANT

R U L I N G

This is an application by way of chamber summons dated 1st March 2004. It was brought under Order XXXIX rule 1, 2 and 9 of the Civil Procedure Rules and section 3 and 3A of the civil Procedure Act. It seeks for orders that the defendant /respondent be restrained temporarily from trespassing into, cultivating and/or in any other manner dealing with the plaintiffs/applicant’s entitled ½ share portion of land LR.No.CHERANGANYI/CHEBORORWA/252 measuring 3 hectares pending hearing of this application inter-partes and the hearing and determination of the suit. The application is supported by the affidavit of Dixon Retenge, the applicant.

At the hearing Mr. Ruto for the applicant submitted that the respondent has been threatening to applicant. The respondent is the wife of the late brother of the applicant. The land was registered in the joint half undivided share of the applicant and the respondent. He submitted that as the case that is pending in court will take long to be finalized, they want a temporary injunction for the time being. He submitted that his client has a prima facie case with high probability of success and that he would suffer irreparable injury if the orders are not granted. He further submitted that the affidavit in reply filed for the respondent is fatally defective, as it contains matters of fact, which are matters of evidence to be given at the trial by the respondent. The said affidavit is sworn by Joseph Cheptarus advocate. He referred me to the case of Kisya Investments Ltd vs K.F.corporation Nbi HCCC.3504 of 1993 and the case of Joyena East Africa Ltd. – vs- Sylvester Onyango & Others Nairobi HCCC.1086 of 2002. He submitted that the affidavit should be struck out.

Mr. Cheptarus for the respondent submitted that the respondent has been in occupation and use of 14 ½ acres of the subject land. He submitted that it is not true that the respondent trespassed on 19/2/2004. The respondent has been in occupation since 1983, which is more than 21 years, therefore both the suit and application are incompetent. The land was registered way back in 1974. He submitted that the applicant has failed to show a prima facie case and also that he will suffer injury. He submitted that the affidavit in reply is not defective as it had disclosed the source of information. He further submitted that in terms of section 103 (1) of the Registered Land Act, as the parties were registered in common, the land has not been divided and therefore the court cannot grant an injunction.

I have to consider whether the respondent has trespassed on land belong to the applicant; whether the affidavit in reply filed on behalf of the respondent is defective and whether there are grounds to justify the granting of a temporary injunction as prayed.

It is not in dispute that the parties are registered in common ½ undivided share since 1974 as evidenced by the certificate of search dated 10th December 2003. The applicant has stated that the respondent has refused him to cultivate his rightful share in February 2004. He has however not stated exactly which part this is and why he says that it is his rightful share of land. He has not persuaded me that the respondent has trespassed.

On the issue of the affidavit in reply being defective, I have perused the affidavit. It is fairly detailed. It gives the source of information as the instructions of the respondent. I have perused the two cases referred to me.

The case of Kisya Investment Ltd. – vs- K.F. Corporation is a case where the source of information was not given. The case of Joyena E.A. Ltd – vs- Sylvester Onyango is a case where a verifying affidavit was sworn even before the plaint was made and signed. I distinguish these two cases, as in our particular circumstances; the source of information was given.

Therefore I hold that the verifying affidavit is not defective.

On whether the applicant has given grounds justifying the granting of the orders of a temporary injunction, I am afraid he has not. He has not established which particular portion of the land that he has a specific ownership rights as a person, he has not established that there was an there will continue trespass by the respondent on that land and that he will suffer irreparable loss if the order for temporary injunction is not granted. It appears to me that this is a matter where the applicant thinks that the land, which is currently registered in common, should be subdivided, which can be done. However I do not think that this is a case justifying my exercise of discretion to grant a temporary injunction. I therefore decline to grant the orders prayed.

In the result, I dismiss this application with costs to the respondent.

Dated and delivered at Eldoret this 28th day of April 2004.

George Dulu

Judge

(I certify this a true copy of the original)

DEPUTY REGISTRAR