Ismael Ambeyi & Patrick Wekesa v Davis Wafula Nakitale [2018] KEELC 3500 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 145 OF 2016

ISMAEL AMBEYI......................................1ST PLAINTIFF/RESPONDENT

PATRICK WEKESA.................................2ND PLAINTIFF/RESPONDENT

VERSUS

DAVIS WAFULA NAKITALE...........................DEFENDANT/APPLICANT

R U L I N G

1. The application dated 12/2/2017 seeks an order of temporary injunction to restrain the plaintiff/respondent from wasting or continuing to waste the land subject matter of this suit.  It is alleged that the plaintiffs and their agents began excavating murram from the suit land on 10/2/2018. The application is supported by the sworn affidavit of the defendant.

2. The application is opposed. The 1st plaintiff filed a replying affidavit which he swore on 19/2/2018. The grounds upon which he opposes the application are that he bought 4 acres out of the said land and took possession thereof.  He exhibits an agreement. He states that upon execution of that agreement the defendant allowed him to take immediate possession of the land. The defendant was supposed to hand over his particulars to facilitate transfer of the land to the 1st plaintiff but he has never done so despite the plaintiff paying the entire consideration under the agreement.

3. I have looked at the plaint. Whereas the 1st plaintiff alleges he bought a portion of the land from the defendant, the 2nd plaintiff alleges he bought his portion from one Jonathan Mtende. The plaintiffs have not exhibited any title to land in their name as the transfers have not been registered. At present all they seem to be having are interests created by the agreements mentioned in their pleadings.

4. However, I have examined the annextures to the 1st plaintiff’s reply and read the exhibited affidavit of the defendant which acknowledges that he sold some land to the 1st plaintiff and that only a balance of Kshs.200,000/- remained outstanding in that sale. The defendant has not also exhibited any documents showing he owns the land. There is a “draft defence” filed by the defendant that also does not assert any ownership of the land.  Other parties are mentioned by the plaintiffs as having sold their interest in the land to the 2nd plaintiff and to the defendant.

5. I find that there is not enough basis laid before this court by the applicant to warrant the granting of the orders sought in the application dated 12/3/2018.  This is a matter in which the parties should seek a hearing date on priority basis and have all issues surrounding the suit land should upon hearing be determined on the merit. The plaintiffs aver they have been on the land for 10 years. This is not controverted by the defendant. There is also no evidence that the damage caused would not be capable of being compensated for by way of damages.

6. I therefore find that the application dated 12/3/2018 has no merit and I dismiss it with costs to the plaintiffs.

It is so ordered.

Dated, signed and delivered at Kitale on this 11thday of April, 2018.

MWANGI NJOROGE

JUDGE

11/4/2018

Coram:

Before - Mwangi Njoroge - Judge

Court Assistant - Picoty

N/A for parties

COURT

Ruling delivered in open court in the absence of the parties who had notice of the ruling date.

MWANGI NJOROGE

JUDGE

11/4/2018