Mary Ikabukonyi Jakait v Francis M. Mumani, Emily Nekesa Nyongesa & Mumias Sugar Company Limited [2014] KEHC 5727 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENT AND LAND  CASE NO. 245 OF 2013

MARY IKABUKONYI JAKAIT ...............................................................................PLAINTIFF

VERSUS

FRANCIS M. MUMANI                                          ]

EMILY NEKESA NYONGESA                              ]

MUMIAS SUGAR COMPANY LIMITED             ]......................................DEFENDANTS

RULING

1.  The Applicant is seeking  temporary orders of injunction restraining payment of cane proceeds to the 2nd Defendant pending the hearing and determination of this suit. The application is premised on the grounds on the face of it and on the supporting affidavit sworn by the Applicant.

2.  The Applicant depones that  she leased   the cane from the 1st Defendant for three harvests at a consideration of Kshs. 40,000/=.  She   tendered the cane but the 1st  Defendant cashed the money after the cane was harvested.  Later the 1st  Defendant leased the said cane to  the 2nd Defendant.  The cane has been harvested by the  3rd Defendant and  is likely to pay  the  1st and 2nd Defendant the proceeds, hence the  need to obtain an order stopping them.

3. The application is opposed and the 1st  & 2nd Defendants  have each sworn a replying affidavit. The 1st Defendant denies entering into any agreement of lease with the Applicant.  He also deponed that the application offends the provisions of the Civil Procedure Rules and the Statutory  Declarations Act   – an issue raised by the 2nd Defendant  too.The 2nd Defendant denies entering  into a secret agreement with the 3rd  Defendant. Neither  that  she  wrote to the 3rd Defendant to delete the  1st Defendants name.

4. Both counsels  presented oral submissions to highlight the basis of their clients claims. The 1st & 2nd Defendants relied on the case of Bungoma Election Petition No. 3 of 2013, Musikari N. Kombo Vs.  Moses M. Wetangula & 2 others to support the point of the Applicants documents not complying with  the requirements of  Section  6 of the Statutory Declarations Act.

5.   I have perused the pleadings filed and considered the oral submissions  presented. The Applicant's supporting affidavit does not contain any annextures.  At paragraph 4, she refers  to entering an agreement  of lease with the 1st  Defendant on 5. 5.2011 but failed to annex the said  agreement to the  affidavit.

6.  However l have taken it upon  myself and  looked  at what is referred to as  the letter and the cane  lease agreement contained in the list of   documents  filed alongside  the plaint.  The lease agreement did not    specify the  number of harvests the Applicant could undertake, while  the letter  refers to three harvests.  The Applicant aver this was the  1st ratoon (2nd harvest) and it is  her who  developed the cane.  There was no  mention of how much she used to develop the cane neither any  documentation in terms of receipt of purchase of any  farm inputs.

7.  In any event this is a  liquidated claim. If the money is paid out to the Defendants, she can always be compensated in damages at the end of the cane.  She has not pleaded  that the 1st and 2nd  defendants  lack capacity to  refund the money In the even her suit is successful.  Finally her prayers were limited to stopping payment of cane  proceeds being made to the   1st & 2nd defendants. She did not   pray  for an order stopping their continuous use of the disputed land (field No. 150 on  plot number  South Mateka/736) while the case is pending. I find therefore that the Applicant claim is one that can be  compensated by way of damages.   Her application fails  the test  set  out in  Giella Vs. Cass Man Brown for granting injunctions.The application is therefore dismissed with costs  in the cause.

DATED, SIGNED and DELIVERED in open court this   11th   day of  Feb   2014.

A. OMOLLO

JUDGE.