Manuel Wanyonyi Musomele v Francis Wanyonyi Omina [2018] KEELC 231 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 181 OF 2016

MANUEL WANYONYI MUSOMELE.................APPLICANT/PLAINTIFF

VERSUS

FRANCIS WANYONYI OMINA................RESPONDENT/DEFENDANT

RULING

1. The application dated 19th December, 2016 seeks for orders for injunction to restrain the defendant from interfering in any manner with the plaintiff’s plot of land known pending the hearing of the suit.

2. The grounds on which the said application is made are that the plaintiff lawfully bought his parcel of land from the defendant as a bona fide purchase and paid the agreed amount of consideration of Kshs.14,000/= in cash on 31/1/2005 and that the plaintiff’s peaceful occupation of the said Plot No. Kapkoi SFT Scheme Plot No. 147 is being threatened unlawfully by the defendant who wants to demolish part of the plaintiff’s plot to carve out an access road through it against the original agreement by the parties made on 31/1/2005. It is averred that the plaintiff would suffer irreparable injury if the injunction order is refused since the plot is his place of abode and source of income.

3. The supporting affidavit is sworn by the plaintiff of 19/12/2016 was filed with the application. In that affidavit the deponent avers that though he is the bona fide the proprietor of the suit premises the same have not been transferred to him formally. He avers that he took possession of the land upon payment of the agreed consideration and started developing the same with the permission of the defendant; however on 10/11/2016 the defendant threatened to demolish part of his premises for the purposes of establishing a road of access for other purchasers through the plaintiff’s plot and when the plaintiff engaged the defendant he turned a deaf ear to him.

4. The respondent/defendant filed replying affidavit sworn on 13/1/2017. He deponed that he is the lawful allottee of Plot No. 147, Kapkoi Settlement Scheme; that in reply to paragraph 3, on 31st January, 2005 he intended to sell a plot measuring 50feet by 100 feet to the applicant at a consideration of Kshs.14,000/=, out of which he paid the sum of Kshs.7,000/= upon execution and Kshs.3,000/= on 4th February, 2005, a copy of the agreement is annexed and marked ”FWO-1”; that it is not true that the applicant paid the entire sum of Kshs.14,000/= and his annextures marked “MWM-1” is a forgery; that the plaintiff never paid the balance of Kshs.4,000/= which remains unpaid to date and which he has refused to pay all along; that later on the plaintiff entered his land without his consent and took possession; that in the meantime he also sold portions of the land to other purchasers and created a 3 feet wide road for their use; that in 2016, the plaintiff sold a plot measuring 53 feet by 100 feet to a third party essentially blocking the access road used by the other occupants of the plot; that Plot No. 147 is agricultural land and still registered in favour of the Settlement Fund Trustees (SFT); that the plaintiff’s supporting affidavit are denied and the plaintiff is misusing the police to perpetuate a fraud; that the plaintiff having lied to the court and uttered false and forged documents cannot be entitled to any equitable remedy; that the defendant is advised by Patrick S. Juma, who drafted in his own handwriting and also witnessed the agreement of 31st January, 2005; that the annexed tendered by the plaintiff is not the agreement Patrick S. Juma actually drafted and that Joshua Nakitare, too who was a witness to the agreement of 31st January, 2005 denies the plaintiff’s purported agreement, marked “MWM-1” and bother confirm that is the copy referred to hereinbefore as “FWO-1”.

5. The applicant filed his submissions on 30/10/2018 and the respondent on 29/10/2018.

6. I have considered the submissions of the parties. It is the averment of the defendant that the plaintiff only purchased a plot measuring 50 by 100 feet yet he has purported to sell a portion measuring 53 by 100 feet thus effectively including a road of access measuring 3 feet wide in the sale.  It is also the defendant’s position that the documents filed by the plaintiff are forged.

7. I have seen the developments exhibited by the plaintiff in his supplementary affidavit dated 30/10/2018 showing some houses built on what is said to be the suit land. They are permanent development. They stand to be affected if the orders sought are not granted.

8. In the circumstances I consider that the balance of convenience in this application lies in favour of granting the orders of injunction sought.

9. I therefore grant an order of injunction restraining the defendant from in any manner interfering with the plot occupied by the plaintiff pending hearing and determination of the suit.

Dated, signed and delivered at Kitale on this   3rd    day of  December, 2018.

MWANGI NJOROGE

JUDGE

3/12/2018

Coram:

Before -Hon. Mwangi Njoroge, Judge

Court Assistant - Picoty

Mr. Bisonga holding brief for Nyamu for plaintiff

N/A for the defendant

COURT

Ruling read in open court.

MWANGI NJOROGE

JUDGE

3/12/2018