Humultone Marakia Wambeye [suing as the administrator of Ainea Wambeye Wakhabu(Deceased) v Saul Masika Makasi,Enock Mukhwana Wanyonyi,David Waliaula Kipei & Solomon Sifuna [2013] KEHC 1424 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 29 of 2012

HUMULTONE MARAKIA WAMBEYE

[suing as the administrator of AINEA WAMBEYE WAKHABU(DECEASED)..... PLAINTIFF

VERSUS

SAUL MASIKA MAKASI.................................................................................…1ST DEFENDANT

ENOCK MUKHWANA WANYONYI....................................................................2ND DEFENDANT

DAVID WALIAULA KIPEI …............................................................................. 3RD DEFENDANT

SOLOMON SIFUNA …......................................................................................4TH  DEFENDANT

RULING

The applicant has  sued the  four defendants by a plaint and has filed an application within the suit under Order 40 seeking temporary orders of injunction.  During  the hearing of the application, what is for determination is prayer (d) and (e) of the application which is;

(d)  THAT  the Defendants/Respondents by themselves, their servants, agents and or relatives  or any other persons claiming through them  be restrained from encroaching on, constructing on,cultivating on and  or in any way interfering with the Plaintiff's/Applicant's land parcel number BOKOLI/CHWELE/204 pending the hearing  and determination  of this suit.

(e). THAT costs of this application  be provided for.

The  Applicant depones that he is the legal administrator  of the estate of his father AINEA WAMBEYE WAKHABU -  deceased He depones further that the defendants have unlawfully and without any justification entered and  trespassed on L.R. BOKOLI/CHWELE/204 constructing structures and cultivating the same without his consent.  Finally that the defendants purport to have purchased land from persons who had no capacity to deal, therefore the estate of the deceased  is likely to suffer irreparable loss and damage should construction proceed.

The defendants have opposed the  application. The 1st defendant deponed on behalf of  2nd & 3rd defendant that they have been using the suit portion of land since time of purchase (13. 12. 2003 & 6. 10. 03). They want  title deeds for the sold portion issued to them and have no intention of  alienating the land.  At paragraph 7, 1st defendant depones that  granting the orders amount to constructive eviction.

The 4th defendant's  case is that he purchased  a portion of his land from the 1st defendant.  He also opposed  the application.  He depones  at paragraph 6 that he is in occupation of the land and has constructed a residential house and other developments on it. He does not know the plaintiff/applicant. According  to him, the applicant  is  trying to settle scores with the 1st defendant  and he should not be made part  of it.  He  avers the applicant has not met the basic principles for  granting injunctions.

The applicant  submits the defendants' use of the  land is unlawful. This may be so but  it seems this  application was filed long after the defendants moved into the suit land. This is deduced from the pleadings, in prayer (a) of the plaint, the applicant is seeking eviction orders. The applicant did not file further affidavit to contest the issues raised in the replying affidavits especially the 4th defendants averment that he lives on this land.

Mrs. Mumalasi submitted that the 2nd defendant is  erecting  a permanent structure. The court is  not told the nature of other structures already  built on the land. However this fact has not been denied by the 2nd defendant. Although  the defendants are already in occupation, it will be in the interest of justice that pending determination of this suit, they be restrained  from undertaking  new activities/developments on the suit land. Given the circumstances of this case, I can only allow prayer (d) partially, to the extent that the defendants by themselves, servants, agents and relatives  claiming through them be restrained from carrying out any construction on or disposing of the suit  land pending  the  determination  of the suit. As regards prayer on cultivation, the status  quo to remain. he costs of the application shall abide  outcome of the suit.

RULING DATED, SIGNED AND DELIVERED in open court this 5th day of November, 2013.

A. OMOLLO

JUDGE.