Kennedy Khwatenge Wanyonyi (Suing As The Personal Representative Of The Estate Of Simeon Wanyonyi Khwatenge - Deceased v Gabriel Lusamamba & James Mafura [2013] KEHC 2002 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

HCC NO. 82  OF 2010

KENNEDY KHWATENGE  WANYONYI

(suing  as the Personal Representative of the estate of

SIMEON WANYONYI KHWATENGE - DECEASED ….............. PLAINTIFF

VERSUS

GABRIEL LUSAMAMBA ..............................................1ST DEFENDANT

JAMES  MAFURA ….................................................. 2ND DEFENDANT

RULING

This is an application for temporary injunction brought by the applicant seeking to restrain the defendants  and their agents from tilling, ploughing, cutting down crops, planting crops or harvesting crops or acting in any other manner that is likely to interfered with the applicants occupation  and use of L.R. No. KAKAMEGA/MOI'S BRIDGE/1160, 1162, 1161, 1163, 1164 AND 1165 pending the hearing and determination of  this suit.

The application is premised on the grounds on the face  of it and the supporting affidavit.  The applicant  depones that the defendants have been  thorns in his life as they have  prevented him and his siblings  from peacefully occupying and using the suit lands.  Further that the defendant put  up  structures on  26th March 2010 after the death of their father.

More recently, on 17th March the 1st defendant  with  four others started construction on the suit land  armed with crude weapons.

The application is opposed by the defendants who filed their replying affidavits.  Both defendants have annexed  an order issued by D. Onyancha J on 26th October 2010 which required  status  quo to be maintained.  The 1st defendant  avers that the plaintiff caused him to be arrested on 18. 3.13 whereupon he was forced to sign annexture KKW 3 (e) (a letter committing  to pay the applicant  Kshs. 2000/=).

The 2nd defendant  accused the applicant to be the one inter-meddling with the estate  of the deceased.  He added  this application is an abuse of the court process, frivolous and vexatious.

I have read the order annexed issued by my     learned brother D.A. Onyancha on 26th  October 2010 regarding the maintenance of the  status quo.  Therefore  by the applicants own admission in paragraph 6 of his supporting  affidavit, the defendants had already constructed structures on the suit land.  He alleges the defendants “day by day encroached and  penetrate on to the  suit lands.”  It is not  clear why the succession matter has not been pursued to the end from the time the order was issued.   The applicant   did  not  specify which parcels (titles) the defendant  occupied which was part of the status  quo  to be maintained and which parcels (titles) they were using before this order was issued. He is only making a blanket judgment and general  use of the land.

Secondly the order on status quo did not mention any thing on  stopping either of the  parties  from tilling, ploughing or planting of the land. Nothing would have been easier for  the applicant to say for instance, L.R. 1161 was in our use  when the order was issued and on 17. 3.13 the defendants  or their agents  threatened us from using  it.

In the absence of such clear explanation, I find  the application as not meeting the principles set out in the case of Giella Vs. Cassman Brown.

The applicant has also failed to show that  he will suffer irreparable loss.

I would therefore  echo the express orders of the Judge  that   in  Bungoma  HC

P & A 466 of 2009 that

“The status quo  prevailing  on the deceased's estate at the  moment be maintained.” The application is thus dismissed with  costs to the defendants.

RULING  DELIVERED AND DATED this  8th day of  October 2013.

A. OMOLLO

JUDGE.