John Nkonge M'Arithi, Magdaline Nyambura & Joyce Mboya v Peninah Nkatha & Chris Kinyua Wanjagi [2016] KEHC 2872 (KLR)

REPUBLIC OF KENYA

IN THE HIGH  COURT OF KENYA AT MERU

ENVIRONMENT AND LAND CASE NO 114 OF 2016

JOHN NKONGE M'ARITHI........................... 1ST PLAINTIFF

MAGDALINE NYAMBURA........................ 2ND PLAINTIFF

JOYCE MBOYA......................................... 3RD PLAINTIFF

VERSUS

PENINAH NKATHA.................................1ST DEFENDANT

CHRIS KINYUA WANJAGI.................... 2ND DEFENDANT

R U L I N G

1. The main application in this matter is dated 27th July, 2016. It seeks orders:-

(1).THATthis Application   be certified urgent and the same be heard exparte in the first instance.

(2).THATan order of temporary  injunction do issue restraining the 1st Respondent , whether by her agents, servants or anybody acting on her behest from subjecting the Applicants to any annoyance or harassment with the intention of compelling  the Plaintiff/Applicants to vacate the demised premises on PLOT NO. NTIMA/IGOKI/2079 pending the interpartes hearing of the application.

(3).THATan order of temporary injunction do issue restraining the 1st Respondent, whether by herself, her agents, servants or anybody  acting on her behest from  subjecting the Applicants to any annoyance or harassment with  the intention of compelling the Plaintiff/Applicants to vacate the demised premises  on PLOT NO. NTIMA/IGOKI/2079 pending the hearing and determination of the application herein.

(4).THATan order of temporary injunction  do issue restraining the 1st Respondent, whether by herself, her agents, servants or anybody acting on her behest from subjecting the Applicant to any annoyance or harassment with the intention of compelling the Plaintiff/Applicant to vacate the demised premises on PLOT NO. NTIMA/IGOKI/2079 pending the hearing and determination of the suit herein.

(5).THATcosts of this application be borne by the Defendants /Respondents.

2. The Application is supported by the Affidavit of the 1st Applicant and has the following grounds:-

(1).THATthe Applicants are protected tenants by law on PLOT NO. NTIMA/IGOKI/2079.

(2. )THATthe Applicants were served with two notices dated 23/06/2016 and 08/07/2016 requiring them to vacate the demised premises by  31/07/2016.

(3).THAT the two notices are contrary to the provisions of CAP 301 Laws of Kenya and thus illegal.

(4).THAT the tenants have been performing their obligations for the last 13 years or so and they have invested massively on the demised premises.

(5).THAT  the Applicants risk being evicted from the premises as a result of which they would incur irreparable loss and damage.

(6).THAT it is in the interest of justice that the orders sought herein be granted.

3. The Application was slated for Interpartes hearing on 14/09/2016 as the Plaintiffs sought time to respond to the Replying Affidavit  filed by the Defendants.

4. Mr. Ken Muriuki, the Defendants' Advocate  told the Court that there were Affidavits sworn by the 2nd and 3rd Plaintiffs stating that the 1st Plaintiff did not have authority to file this suit on their behalf. The 2nd and  3rd Plaintiffs told the Court that they were misled by the 1st Plaintiff to sign a document which they thought was directed to the Defendants asking them to extend their stay in the suit premises.  They were categorical  that they had no intention of filing a suit.  They also told the Court that they had  moved out of the Suit premises.

5. Mr. Muriuki told the Court that extension of Interim Orders was not tenable because the orders were not served upon the Defendants within the required  3 days but were served about a month and a week since 28/07/2016 when they  were issued.

6. Mr. Muriuki asked the Court  to direct that the Defendants Preliminary Objection  dated 9th September, 2016 be heard expeditiously.

7. The 1st Plaintiff informed the Court that he was willing to vacate the suit premises by 13th December, 2016.

8. The following orders are issued:-

(1)1st Plaintiff  allowed 21 days to file further responses and Parties allowed  leave to further respond as and if necessary.

(2)INTERIM ORDERS not extended .

(3)Preliminary Objection dated 9th September, 2016 to be heard by way of Written Submissions with the Defendants doing so within 21 days of today and the Plaintiff to do so within 21 days after receipt of the Defendants' Written  Submissions.

(4)Status Quo be maintained so that the 1st Plaintiff only continues to use the part of the suit premises he had been using before Institution of this suit.

(5)Directions on 29/11/2016.

(6)Formal Ruling delivered in Court.

9. It is so ordered.

10. Costs shall be in the cause.

DELIVERED IN OPEN COURT THIS 14TH DAY OF SEPTEMBER, 2016 IN THE PRESENCE OF:-

CC: Daniel/ Lilian

Ringera h/b Murithi for the Plaintiffs

Muriuki  for Defendants

P. M. NJOROGE

JUDGE