Kioko Muthenya Kithelyo v Maria Muthama Katunda & Muli Muthama [2018] KEELC 3000 (KLR)

REPUBLIC  OF KENYA

IN THE  ENVIRONMENT AND LAND COURT

AT MAKUENI

ELC CASE  NO.  379 OF 2017

KIOKO  MUTHENYA KITHELYO..............................PLAINTIFF/APPLICANT

VERSUS

MARIA  MUTHAMA KATUNDA................1ST DEFENDANT/RESPONDENT

MULI MUTHAMA........................................2ND  DEFENDANT/RESPONDENT

RULING

1) What is  before court for ruling is the application expressed to be brought under sections  1A, 1B and 3A of the Civil Procedure Act, Order 40 Rules 1,3 and 4 and Order 51 Rule 1 of the Civil Procedure Rules and all other  enabling  provisions of the law for orders that :-

1. Spent

2. That the Respondent s , their servants, agents, or anyone claiming under them or through them be restrained by an order of injunction from entering into, constructing, cultivating, encroaching in, or in any way interfering with Land Parcel No. NZAUI/KITHUMBA/535 pending hearing and determination of the application herein.

3. That  the Respondent s , their servants, agents, or  anyone claiming under their or through them be restrained by an order of  injunction from entering into, constructing, cultivating, encroaching in, or in any way interfering with Land Parcel No. NZAUI/KITHUMBA/535 pending hearing and determination of the suit herein.

4. That the Officer Commanding Kalamba  Police Station does enforce the orders sought in prayer 2 and 3 herein.

2) The application  is dated 21st February, 2018 and was  filed in court on the 22nd February, 2018.  It is predicated on the grounds on its face and is supported by the affidavit of Kioko Muthenya  Kithelyo, sworn at Machakos on the 20th December, 2017  and is opposed by the replying   and supplementary  affidavits of Muli Muthama, the  second Respondent  herein, sworn at Machakos   on the 16th January, 2018  and 20th February, 2018 respectively.

3) On the 17th January, 2018 the court directed that the application be disposed off by way of written submissions. Consequently, the Applicant and the Respondents filed their submissions on the 22nd February, 2018 and 21st March, 2018 respectively.

4) The  counsel  for the parties on record are agreed that in order for the order of interlocutory injunction sought  by the Applicant to be granted, the Applicant must satisfy  the three principles enunciated  in the case of Giella Vs Cassman  Brown & Co. Ltd [1973]EA 358. I  need  not repeat those principles herein save to say that as regards prima facie case with probability of success, the Applicant’s Counsel submitted that the Applicant   has demonstrated  that he is the registered owner of land  parcel number Nzaui/Kithumba/535 and that the Respondents  have constructed on the said Nzaui/Kithumba/535, an issue  the counsel submitted that the second  Respondent  has confirmed  in his own  affidavit.  On the other hand, the second Respondent’s counsel submitted that the Applicant has not discharged the above principle.  The counsel pointed out the Respondents have been in control  and  occupation of the suit property for decades and have gone ahead to put up permanent structures in addition  to cultivating  on it.

5) On the issue of the second principle of an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages, the Applicant’s counsel submitted that in all the pleadings before  the  court the Applicant has demonstrated the loss that he would incur if the orders sought are not granted.  The counsel went on to submit  that in any case the construction and use of the land in dispute by the  Respondents   deny the registered owner of the use and  enjoyment of the land thereby occasioning  great loss and hardship to the Applicant.

6) The counsel  for the Respondents   submitted that the Applicant  has  not   demonstrated the irreparable harm that will befall him taking into consideration that he does not reside on the subject suit land.

7) Regarding the third principle of if the court is in doubt, it will  decide the application on the balance of convenience, the Applicant’s  counsel submitted that the same tilts in favour of the Applicant since he has  demonstrated that he is in occupation and use of the suit land.  The counsel for  the Respondents  opined that upon considering  the balance  of convenience  the court should    order  for status quo to be maintained.

8) I do note that   the Applicant herein has in his supporting affidavit deponed that he is the registered owner of land parcel number  Nzaui/Kithumba/535 and that the Respondents  have trespassed into it and proceeded to construct a permanent   house, cultivated  and  have also been  on grazing  the said land.  The Applicant is silent on when the Respondent  entered into occupation of the suit land. The second Respondent in his replying and supplementary affidavits does not deny the allegation of occupation save that he says that the same is for over  50 years.  Given those circumstances, the appropriate orders to make in this application is for status quo to be maintained pending the hearing and determination of the substantive  suit herein.  In the circumstances, I order that there be status quo as at the time of filing the application dated 20th December, 2017. I further order that each of the parties shall bear their own costs.

Signed, dated and delivered  at Makueni this  16th  Day of  May, 2018 .

MBOGO C.G

JUDGE

IN THE PRESENCE OF;

Mr. Mulei for the  Applicant

Mr. Hassan holding brief for Mr. Mutuku for the respondents

Mr.  Kwemboi Court Assistant

Mbogo C.G Judge

16/5/2018