Jeremiah Wambua v Pius Mbengei Musyoki [2018] KEELC 3428 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT  AND  LAND  COURT  AT MAKUENI

ELC NO. 450 OF  2017

IN THE MATTEROF REGISTRATION  OF TITLES TO LAND   BY ADVERSE

POSSESSION

AND

IN THE MATTER OF SECTION  38 OF THE LIMITATION OF  ACTION ACT

IN THE MATTER OF LAND PARCEL NUMBER LR. NO. MBOONI/KALAWANI/827

JEREMIAH WAMBUA...............................................PLAINTIFF/APPLICANT

VERSUS

PIUS MBENGEI MUSYOKI...............................DEFENDANT/RESPONDENT

RULING

1)  The  application before me is the one dated 6th October, 2017 and filed in court on the 9th October, 2017 for orders that:-

1.  The defendant or his  servants be restrained from evicting the plaintiff, subdividing, or selling parcel no. Mbooni/Kalawani/827 pending the hearing and determination of the main suit.

2.  Costs  do abide in the  application.

2) The application is expressed to be brought under sections 1A and 3B of the Civil Procedure Act and Order 40 of the  Civil Procedure Rules. It is predicated on the grounds on its face and is supported by the  supporting, further    and further supplementary affidavits of Jeremiah Wambua, the applicant herein, sworn on the 6th October, 2017, 15th November, 2017and 22nd January, 2018respectively.

3)It is  opposed  byMbengei, the respondent herein, vide  his replying and further affidavits sworn on the 20th  November, 2017and 4th  December, 2017and filed in court on the21st November, 2017and5th December, 2017respectively.

4)On the 30th October, 2017, the respondent filed a document which for  all intent  and purposes  appears to be an affidavit  though not clearly headed as   one,  the same having  been sworn  on the 30th October, 2017 at  Machakos.

5)On the  22nd  January, 2018the court  directed  that the application be disposed off by way of written submissions. Consequently, the applicant and the  respondent  filed their   respective submissions on  the 12th February, 2018 and  8th February respectively. I have read the submissions in question and they can be summarized as follows:-

§ That status quo be maintained pending the hearing and determination of the main suit.  The applicant has met  the threshold for the grant of injunction.

6)The respondent’s submissions are that the interest of justice demands that the application be dismissed for being unmerited.

7)  Giella vs Cassman  Brown & co.  Ltd [1973] EA 358 has  set  out the principles upon  which the grant  of interlocutory injunction is to be based.  These principles are:

a)Prima facie case with probability of success

b)Interlocutory injunction will not normally be granted unless the applicant  would suffer irreparable injury  which would not  adequately be compensated in damages

c)That if the court is in doubt, it will decide application on a balance of convenience.

8)Regarding the principle  of prima facie case with probability of success, I  do note that nowhere in the supporting,  further and supplementary  affidavits has the applicant shown that the  respondent has threatened to evict him from land parcel number Mbooni/ Kalawani/827. The applicant  further prays   that the respondent be restrained  from subdividing or selling  the  said  suit property.  The respondent has in paragraphs 7 and22  and  23 of his replying affidavit deponed   that he is the administrator  of the estate of the late  Musyoki Mwini and that  having  obtained a confirmation of grant, he cannot be restrained from subdividing  the suit property to each of the beneficiaries named in  the said grant marked as PMM1. I am persuaded by the respondent in that the confirmed grant has not been challenged. The respondent cannot be stopped from doing  that which he has been  authorized to do. To do otherwise would  amount to this court  sitting in appeal  over another court of equal status.    In the circumstances, I hold that the applicant has not shown this court that he has a prima facie case with probability of success.

9) Has the applicant shown that he might suffer irreparable injury which would  not adequately  be compensated by an award of damages?  The  answer is  certainly  not in that   whatever developments  the respondent has made on the suit property are quantifiable and thus  he can be compensated. Even though the applicant has stated that he has established a matrimonial home on the said parcel of land, he has not shown that it is of  such sentimental value that cannot  be  quantified.   The applicant has failed to satisfy this principle as well.

10)This court is not in doubt and even if it were, the balance  of convenience in any event tilts in favour of the respondent.

11)Arising from the foregoing my finding is that the application has no merit and same is dismissed with costs to the respondent.

Signed, dated and delivered atMakuenithis 6th day ofMarch, 2018

MBOGO C.G

JUDGE

In the presence of  ;

Mr.  Mutuve holding for Mr.  Tamata for the applicant

Mr Muthiani holding for Mrs Nzau for the Respondent

Mr. Kwemboi Court Assistant

MBOGO C.G

JUDGE

6/3/2018