Fridah Nelima Nasiuma v Jackson W. Wetosi [2014] KEHC 3983 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 58 OF 2014

FRIDAH NELIMA NASIUMA............................. PLAINTIFF

VERSUS

JACKSON W. WETOSI …............................DEFENDANT

RULING

1.   The  notice of motion coming up for ruling is the one dated 14thMarch 2014 and brought pursuant to Order 40 Rule  1,2,3 of   the  Civil Procedure Rules and Section 3,3A, 1A and 1B of  the Civil   Procedure Act. The prayer pending for    determination is as set out in  prayer (2); “That, pending the   hearing and determination of the  suit,the defendant, servant, agent or anybody else acting through him to berestrained from tilling, dealing or planting any crops on land   parcel   no.Kimilili/Kibingei/1755 and/or Kimilili/Kibingei/4581. ” She also prayed for costs of  the  application to be provided.

2. The motion is premised on eight (8) number of grounds listed on  its  face     and the affidavit sworn in support on 14. 3.2014 by the applicant.  The gist of the Applicant's claim is that she bought this piece of land some time in 1979 when the original number was Kimilili/Kibigei/1755.  Upon subdivision, her share fell under parcel no. Kimilili/Kibingei/4581.  She alleged the Respondent in early March invaded this land and destroyed  her crops.  She therefore  wants the Defendant/Respondent restrained from   doing anything on    the land until   her suit is heard and  determined.

3.  The application is opposed by the Respondent who has sworn an affidavit  thereto.  He depones that there was no restriction on   this  title when he  purchased it on 22nd Nov 2012 from the  registered owner. He denied the Plaintiff's house was on the   land at the time he was being shown the suit land.  He   further   depones     that     the Applicant  purchased the suitland from Michael   Wamatuba Masaba   who is different from the person   that     sold the land to him.  He concluded that the Applicant  has not  met basic principles for granting   injunctions and  urged the court to dismiss the application with costs to him.

4.  I have considered the submissions presented for and against this application.  While looking at the pleadings, it shows that  the Respondent in his replying affidavit has not denied that he destroyed the Applicant's crops in early March 2014.  He has also not denied that he was summoned by the police  over the Applicants occupation of the suit land.  Further, apart from saying there was only a hut on this parcel of land; the Respondent does not mention whether or not it had any crops/trees growing on the land at the time of his visit.

5. The Respondent depones in paragraph 14 of his affidavit that he has  entered an agreement with Nzoia Sugar for cultivation of   cane on the suit land but none has been exhibited to this court.  The Applicant on her part has demonstrated that she    has been using the land over 33 years. She has also demonstrated   through the Agricultural Officers report that  she had  crops (whose value is given) at the  time the respondent went to   occupythe  suitland.

6.   The Applicant however failed to demonstrate that she had a   restriction existing on  this   title when the land was sold.  What she has exhibited is merely a receipt but no  proof that  the caution lodged was registered.  The documentation also shows lack of vexus between her and the seller to the current respondent.

7.   In spite of the prevailing situation, it will be unjust to close the   door  of        justice by denying her the orders sought as doing so  may     render her suit          nugatory and to encourage people such as the  Respondent of  dispossessing people in occupation of land  through  the back door.  I do   take into consideration the fact that the   Respondent has spent Kshs. 750,000/= to purchase        the   suit    land.  He is also entitled to  enjoy from the  seat of justice.

8.   In balancing these two competing interests of the parties, I will          give     conditional injunction. Consequently, I do grant prayer  (2) of  the motion for a        limited period of time.  The injunctive orders granted to  remain in force until 18th December 2014 within   which  period  I order the Applicant shall do either of the   following;

i.    Ensure that the process of substituting Simon Musokhe   Wechuli as defendant in     Bgm. HC E & L case no. 11 of 2013 is finalized or almost finalized to allow that matter to be fixed for hearing.

Or

ii.   The preliminaries in this matter (exchange of documents  and witnesses statements) are concluded and the same set down for hearing within the period provided.

8.         Whichever of the options the Applicant opts to pursue, if she does not perform  the conditions as by  date set, the injunctive orders shall automatically be discharged.  This will allow the Applicant not to take a back seat in this matter in enjoying   the orders of injunction to the detriment of the Respondent. Each party will bear their costs of this application.

DATED, SIGNED and Delivered at Bungoma this 26th  day of June   2014

A. OMOLLO

JUDGE.

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