Jane Wafula Wanyama(suing through legal administrator in the estate of Reuben Wanyama Waswa v Wenslaus Wamalwa, Jamin Yauru, Joseph Masika, Fred Wafula, Jafred Simiyu, Absolom Saratuki, Judith Nasambu Sifuna, Peter Nkhoywa [2014] eKLR [2014] KEHC 2366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 119 OF 2012

JANE WAFULA WANYAMA(suing through legal administrator in the estate of

REUBEN WANYAMA WASWA...................................................................... PLAINTIFF

VERSUS

WENSLAUS WAMALWA

JAMIN YAURU

JOSEPH MASIKA

FRED WAFULA

JAFRED SIMIYU

ABSOLOM SARATUKI

JUDITH NASAMBU SIFUNA

PETER NKHOYWA .................................................................................... DEFENDANTS

RULING

1.         The      7th defendant/applicant has moved this court by a notice of    motion dated  1st July 2013 brought under order 40 rule 1,2,& 3 of the civil procedure rules seeking for an order;

(a).      The plaintiff  by herself or  agents and servants be restrained from occupying and/or   collecting rents from the suit premises     pending hearing  inter partes.

(b).      That  the rents from the suit premises namely a butchery shop be deposited in court at the  rate of kshs. 6,000/= per month till the full  determination of the suit.

(c).      Costs be provided for.

2.         The application is supported by  5 grounds listed on the face of  it and a 6 – paragraph supporting affidavit.  The grounds inter alia are;

i.          Plaintiff has  entered and/or started collecting rents from the shop allocated to the 7th defendant/applicant.

ii.         The applicant relied on the rent allocations to  educate her children.

iii.        The plaintiff was allocated her own shops

iv.        The rents ought to be protected and  accounted for.

3.         The motion is opposed by the plaintiff/respondent. In a replying affidavit filed on 10th July 2013, the plaintiff/respondent  denies the applicant is a beneficiary to the estate of Reuben Wanyama Waswa.  The Respondent deposes that the applicant's name was also not included during the clan distribution of the deceased assets, and she proceeded to  annex as exhibit the clan list  to her affidavit.  According to her, the applicant went to her shop (suit premises) in July 2012 with  threats to  evict her.  She depones  the application is  an afterthought and  no sufficient reasons have been given to show there is a valid claim.  She urged the court to dismiss  the application.

4.         I have considered the  rival submissions filed  together with  the pleadings herein.  The applicant seeks temporary orders of injunction under order 40 of the Civil Procedure Rules.  There are  set principles which guide courts whether to grant  or refuse injunctions i.e

i.          Whether the applicant has shown he has a   prima facie case with chances of succeeding.

ii.         In whose favour balance of convenience tilts.

iii.        Whether irreparable loss which cannot  be compensated by damages will be occasioned to the applicant.

5.         In reading the application as presented, the applicant has  failed to   demonstrate to this court that  she has ever received rents from the        suit premises by annexing either receipts  or tenancy agreement. In her supporting affidavit, she does not  say  how long she had been receiving rents and when the plaintiff stopped her from collecting such rent.  In terms of suffering irreparable loss, she had not named the children whom she is paying for school fees from the rents collected.  She does not disclose or show the school fees arrears  and whether the said children are  in or out of school.  All she said is;

“That I  do not  have any other source of income to  educate and provide for the  children of the deceased  yet all of them are school going.”

6.         The respondent said the applicant went to the premises in July 2012 and threatened to  evict her.  The applicant has not denied this fact.  As submitted by the respondent's counsel, the  balance of convenience tilt in their favour as it is the respondent who is apparently in possession of the suit property.  The applicant has thus failed to establish any of the principles  for granting injunctions and her motion therefore fails  in regard to  prayer (a).  In regard to prayer  (b) for an order to deposit  rent  in court, there has been no basis  laid before this court to  restrain the respondent from collecting rent from the suit premises.  It follows therefore that based on the court's finding above, the order requesting deposit for rent also fails.  No satisfactory evidence has been placed before the court creating any nexus between the applicant and the suit premises.

7.         In conclusion, I find the present application as lacking in merit and dismiss it with costs to the plaintiff/respondent.

DATED, SIGNED and DELIVEREDin Bungoma this 30th day of Sept. 2014.

A. OMOLLO

JUDGE.