Jane Gitiri Njue & Dorothy Warimba Kariuki v Peter Mbogo & Njururi Angelo Nyaga [2014] KEHC 6770 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

ELC CASE NO. 777 OF 2013

JANE GITIRI NJUE ...................................... 1ST PLAINTIFF

DOROTHY WARIMBA KARIUKI ................. 2ND PLAINTIFF

VERSUS

PETER MBOGO ......................................1ST DEFENDANT

NJURURI ANGELO NYAGA ..................... 2ND DEFENDANT

RULING

On 24th October 2013,  I granted prayers 1 and 2 of the plaintiffs/applicants  Notice of Motion dated the same day seeking injunctive relief  restraining  the defendants/respondents from entering, evicting, selling, transferring or in any way interfering with land parcel No. NGANDORI/KIRIARI/4329  pending the hearing of the application  inter-parte  which was set for 6th November 2013.

The said orders were issued after the Court considered the supporting affidavit of the 2nd plaintiff/applicant’s affidavit in which she deponed, inter alia, that the two plaintiffs/applicants  are wives of the 1st defendant/respondent (now deceased) and that they have lived on the said land for over fourty (40) years  together  with their children and the same is their sole source  of livelihood yet in April 2013 they discovered that their late husband had sold the land to the 2nd defendant/respondent without involving  them.

The 2nd defendant/respondent has now filed a replying affidavit  to the plaintiff/applicant’s Notice of Motion in which he depones, inter alia, that the plaintiffs/applicants have not demonstrated that they are wives of the 1st defendant/respondent and therefore have no locus to pursue this matter.  Further, the 2nd defendant/respondent adds that he bought the property for value and nobody is residing there including the plaintiffs/applicants.  He has annexed to his replying affidavit photographs showing that the land infact has tea bushes.

On his part, the 2nd defendant/respondent also filed his own Notice of Motion seeking the discharge of the ex-parte orders of injunction and in the alternative an order restraining the 1st and 2nd plaintiffs, their servants, children, family members or anybody claiming  through them from interfering, trespassing, intruding or in any manner dealing with the said property.

When counsels appeared before me on 25th  November 2013, it   was agreed that the two applications be canvassed together by way of written submissions.   I have considered the applications, the supporting and replying affidavits  as well as the submissions of counsels.

The issue of the plaintiffs/applicants locus has arisen.   They claim to be the wives of the 1st defendant but have no grant of letters of Administration pendete lite (for the purposes of this litigation).   The 2nd defendant/respondent has deponed  that they are not bone fide wives of the 1st defendant who is now deceased.    It is not clear when the 1st defendant died and if any grant of letters of Administration have been issued in respect to his Estate.   In the circumstances, the Court can only conclude that no such grant has been issued.  The plaintiffs/applicants have however come to Court not as representatives of their later husband but as co-owners of the property in question.    Indeed they claim it is matrimonial property because in paragraph  12 of their plaint they have pleaded as follows:-

“The plaintiffs contend that they have acquired an interest on  the said land by virtue of their marriage and the development  of the land for more than 40 years hence they are now co-owners.

Given that pleading, their locus is not in doubt but the issue of their co-ownership will await the trial.

The 2nd defendant/respondent seeks the discharge of my earlier orders.    I see no basis upon which to do so and that application is dismissed.

Both parties  are seeking injunctive reliefs.   There is a crop of tea on the land and since the 2nd defendant/respondent only purchased the land in August 2013, he cannot possibly be the owner of that crop.  In any case, there is a letter attached to his own affidavit  (annexture NAN– 4)  which is a letter from the chief of the area showing that the plaintiffs/applicants  are the ones who work on that crop.   In the circumstances, the orders that commend themselves to make in this case are as follows:-

Neither of the parties to this suit shall sell, transfer or in any way interfere with the suit property until this case is heard and finally determined.

The plaintiffs/applicants shall continue to work on the tea crop on the land

Each party to bear their own costs.

B.N. OLAO

JUDGE

25TH FEBRUARY, 2014

25/2/2014

Coram

B.N. Olao – Judge

CC – Mwangi

Mr. Mogusu for Applicant – present

Respondent – absent

COURT:     Ruling delivered this 25th day of February 2014 in open Court.

Mr. Mogusu for plaintiff/applicant present

Mr. Mungai for defendant/respondent absent.

B.N. OLAO

JUDGE

25TH FEBRUARY, 2014