James Kuria Wairagu, Joseph Ngungu Gitu, Millicent Wakonyo, Mary Wanjiru Joseph, Samwel Njenga Ndungu, Duncan Gitu Ndungu, John Gibson Mwangi Kimari, Stephen Maina Kanjuru & Teresia Wambui Maina v Transition Authority & Busia County [2014] KEHC 1781 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 32 OF 2013.

1.  JAMES  KURIA WAIRAGU

2.  JOSEPH NGUNGU GITU

3.  MILLICENT WAKONYO

4.  MARY WANJIRU JOSEPH

5.  SAMWEL NJENGA NDUNGU

6.  DUNCAN GITU NDUNGU

7.  JOHN  GIBSON MWANGI KIMARI

8.  STEPHEN MAINA KANJURU

9.  TERESIA WAMBUI MAINA................................................PLAINTIFFS/APPLICANTS

=VERSUS=

1.  TRANSITION AUTHORITY

2.  BUSIA COUNTY.........................................................DEFENDANTS/RESPONDENTS

R U L I N G.

JAMES KURIA WAIRAGO, JOSEPH G. NDUNGU GITU, MILICENT WAKONYO, MARY WANJIRU JOSEPH,  SAMWEL NJENGA NDUNGU, DUNCAN GITU NDUNGU, JOHN GIBSON MWANGI KIMARI, STEPHEN  MAINA KANJURU and  TERESIA WAMBUI MAINA, hereinafter referred to as the 1st to 9th Applicants  filed the Notice of Motion dated 16th May, 2013  under certificate  of urgency against Transition  Authority and Busia County, hereinafter  referred to as the  1st to 2nd  Respondent for temporary  order of injunction from ‘’entering , digging. ploughing, leveling, excavating, constructing  a parking area, position tractors  or other  machinery  or in any other manner whatsoever  from using or interfering with the Plaintiffs rights  on land parcels Nos. Bukhayo/Bugengi/3643, 3644, 3645, 3647, 3081, 3078. , 3077, 3079, 3080, 1604 and 2789 pending  the hearing and final determination of this suit ‘’ and  costs.  The application  and the supporting and supplementary  affidavits  of James Kuria  Wairagu (1st Applicant) sworn on 16th May, 2013 and 5th July, 2013 respectively.

The application is opposed by the Respondents through  Bogonko Otanga & company advocates dated 23rd May, 2013. The Attorney General through the Senior Principal Litigation Counsel later came on record for the 1st Respondent and filed grounds of opposition dated 17th September, 2014.

When the application was placed before this court on 20th May, 2013, the court certified  it as urgent  and directed it  be served for hearing on 23rd May, 2013.

The counsel  for the parties appeared  before the court on 23rd  May, 2013 and temporary  orders were  issued, Respondents granted 21 days  to file replying papers and further interpartes hearing  fixed for 13th June, 2013.  On that  day the hearing  was rescheduled to 10th July, 2013  on application of  the Applicants and again  moved to 16th September, 2013.  On the 16th September, 2013, counsel informed the court that they were negotiating and the matter was placed for mention on 15th October, 2013.

The counsel  then filed a written consent  dated 17th October, 2013 which was entered in the court record  on 31st October, 2013 allowing  the application.  This was followed  by another consent dated  3rd June, 2014 setting aside the consent of 23rd April, 2014, withdrawing the replying affidavit  sworn on 10th June, 2013 by Redempta Oyeyo and reinstating the interim orders that were in force as at 23rd May, 2013  among others.

The court has severally extended the time for the parties to file additional replying papers to the application and on the 6th October, 2014, counsel for the 2nd Respondent indicated they were not filing any further replying papers. The court then heard the submissions of Mr. Onsongo for the Applicants and Mr. Makokha for the 2nd Respondent.

The court has carefully considered the grounds on the application, supporting and supplementary affidavits, grounds of oppositions and submissions by counsel and find as follows:

That the Applicants have exhibited copies of title documents to the suit lands and extract of a parliamentary debate that clearly shows the Applicants have a prima facie case and have therefore complied with the requirements  set out in GIELLIA –VS-  CASSMAN BROWN before  issuance  of temporary injunctive orders.

That  the 1st and 2nd  Respondents are entitles  that can  sue or be sued under the provisions of Devolved  Government  Act Cap 265 A and County Government  Act Cap 265 of Laws of Kenya respectively.

That  for reasons  set out above, the  application  dated 16th May, 2014  is allowed in the following terms;

That temporary  injunction is hereby  issued against  the Respondents, their servants, employees, contractors, agents or persons working under them or under their instructions from interfering with the Applicants  rights as  registered proprietors of the suit lands, Bukhayo/Bugengi/3643, 3544, 3645, 3647, 3081, 3078, 3077, 3079, 3080, 1604 and 2789  pending  the hearing  and determination of this suit.

That the costs of this application be in the cause.

That so as to avoid further delay in this matter, the court on its own volition  gives the following  directions.

That the  Plaintiff do file and serve any outstanding  evidence  affidavits and lists of documents  in 30 (Thirty) days from today.

The Defendants  do file and serve evidence  affidavits and list of documents  in 30 (Thirty) days after service.

That the matter be mentioned in January, 2015 to confirm compliance and  fix a hearing date.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  5th DAY OF NOVEMBER, 2014.

IN THE PRESENCE OF; Mr. Onsongo for Applicants, Mr. Onyiso for 1st Respondent and Mr. Makokha for 2nd Respondent.