Jephther Nalianya Munyikana v Benson Wanyama Nalwa, Land Registrar & Attorney General [2013] KEHC 1330 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 127 of 2013

JEPHTHER NALIANYA MUNYIKANA......…….....................… PLAINTIFF

VERSUS

BENSON  WANYAMA NALWA.........…....................…1ST DEFENDANT

THE LAND REGISTRAR...........................................2ND DEFENDANT

THE ATTORNEY GENERAL.....................................3RD  DEFENDANT

RULING

By Notice  of Motion dated 6th May 2013 brought under  Order 51  Rule 1 & Order 40 Rule  1 of the Civil Procedure Rules the Applicant seeks orders;

4.   THAT pending the hearing and determination of this suit  there be an order for temporary injunction against the  1st Defendant/Respondent   restraining him by himself or his agents and or servants  and or any other person acting under his authority or direction from transferring,wasting, damaging, alienating, trespassing, selling, utilizing,developing, removing or otherwise disposing off those portions namely                                          Ndivisi/Makuselwa/2232,Ndivisi/Makuselwa/2233,  Ndivisi/Makuselwa/2234 and Ndivisi/Makuselwa/2235.

The application is supported by the grounds on the face of it  and the affidavit sworn  by the Applicant. The 1st Respondent opposed the application and filed a replying  affidavit.  The 2nd & 3rd Respondents have not filed any documents  in opposition. When the application came up for hearing, the Applicant  and 1st Respondent  chose to rely on the pleadings filed and left  it to the  court to make a finding.

I have perused the pleadings. Briefly this is what is brought out, the Applicant depones that he did not sell 8 acres  to the 1st Defendant.  However by a subdivision undertaken by the 1st Defendant, he acquired 8 acres of the suit land.  The origin of this case is execution of an award given by Webuye Land Disputes Tribunal  which  awarded the 1st Respondent land measuring 0. 41ha.  In his replying affidavit, the 1st Respondent annexed a sale agreement showing the applicant sold a portion  of the land L.R. Ndivisi/Makuselwa/377 measuring 0. 41 ha (1. 08 acres).

The copies of  official searches annexed to the supporting affidavit reveals  the resultant nos from the subdivision Ndivisi/Makuselwa/2235 measuring   1. 0 ha, L.R. Nos. 2232 measuring 1. 4 ha and L.R. No. 2234 measuring 0. 6 ha, are all registered in the name of BENSON WANYAMA NALWA – 1st Defendant. This is in  contradiction to 1. 08 acres of  land he purchased and awarded to him by the tribunal. On the basis of the annexed documents, I find the Applicant has established a prima facie case  with chances of success. Consequently i find the application  has merit and allow prayer 4  thereof.  The costs of the application is awarded to the Applicant.

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

A. OMOLLO

JUDGE.a