Grace Namarome Mukhwana v Joel Khakame Mukhwana, Karimu Juma Mukhwana, Emmanuel Wanjala Mukhwana & Marisella Nabukwangwa Mukhwana [2014] KEHC 7479 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 29 OF 2014

GRACE NAMAROME MUKHWANA…........................................APPLICANT

VERSUS

JOEL KHAKAME MUKHWANA

KARIMU JUMA MUKHWANA

EMMANUEL WANJALA MUKHWANA

MARISELLA NABUKWANGWA MUKHWANA......................... RESPONDENT

RULING

1.         The Applicant moved the court by an application dated 11th   February 2014 seeking orders;

i.           That this Application be certified as urgent and service be dispensed  with in the 1st instance.

ii.        That while pending the hearing of this application inter parties his Lordship be pleased to issue a  temporary injunction to  restrain   the Defendant/Respondent's/ their agents and/or servants from entering/cultivating/cutting trees/building houses and/or committing acts of  waste/or in any other manner whatsoever, interfering  with the Plaintiff's use of land comprised in the TITLE NO. BUNGOMA/KAMUKOIWA/3447.

iii.       That the prayer  in  2 herein be confirmed and/or extended  while pending the hearing and final determination of the suit herein.

iv.       That the O.C.S. Mukuyuni police station be directed to ensure that the Orders issued herein are complied with.

v.         That costs of this application be provided for.

2.         Prayer 1 and 2 was granted at an interlocutory stage.   The 4th Respondent has  sworn an  affidavit on her own behalf and on behalf of the 1st -  3rd Respondent.  She  is the estranged wife of James Mukhwana Wakaenya – deceased, who is the registered owner of  the suit parcel of land No BUNGOMA/KAMUKOIWA/3447.

3.         I have considered  all the issues raised in the pleadings filed by both parties. It is clear the Applicant has taken out letters of administration of the estate of  James Mukhwana – deceased.   Those letters are yet to be confirmed. The issue in dispute relates mainly to sharing of the land title NO.  BUNGOMA/KAMUKOIWA/3447 and determination  of who the   true beneficiaries are.  I do find therefore that the proper  court  to resolve this dispute would  be the High court handling the succession cause.

4.         I therefore do direct  all the parties  herein to only use the portions of land they were using prior to the death of James Mukhwana as they await the distribution of his estate.  This infers  that  if a party feels he/she is entitled to a portion of BUNGOMA/KAMUKOIWA/3447,let him/her present her claim within the succession cause No. 221 of 2013.   The orders of injunction I therefore grant is to restrain  any party from sharing and/or distributing and/or interfering with L.R. No. BUNGOMA/KAMUKOIWA/3447pending further orders of this court. This matter be mentioned on 12th June 2014 to confirm the status of distribution of  the estate of James Mukhwana in the Bungoma High Court succession cause No. 221 of 2013.

DATED, SIGNED and DELIVERED this   31st day of March  2014.

A. OMOLLO

JUDGE.