MAUNDU KINGA V KABAKA MUSANGO & ANOTHER [2012] KEHC 2135 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Civil Case 60 of 2003

MAUNDU KINGA.........................................................PLAINTIFF

VERSUS

1. KABAKA MUSANGO

2. YUMA MUSANGO............................................DEFENDANTS

R U L I N G

1.     This suit was filed on 28th August 2003 by plaint of the same date. The Plaintiff pleads that he is the registered owner of plot No. 81B in Syumile Settlement Scheme, Makueni District. His case is that “sometimes in November 2002 the Defendants wrongfully and unlawfully entered into the said land and started trespassing into the (same) by cultivating, cutting trees, clearing and burning vegetation therein”. The main reliefs sought are an appropriate permanent injunction and general damages.

2.     The Defendants filed a joint statement of defence dated 13th October 2003. They denied the Plaintiff’s claims. They also pleaded, without prejudice, that the suit land is family land which was sub-divided on 8th March 1991 amongst three households represented by Maundu Kinga, Mwinza Mutolonga and Richard Kabualia Musango. They further pleaded that each party peacefully occupied and developed its own portion. They denied that the suit land was registered in the Plaintiff’s name.

3.     It appears that the suit was then prepared for hearing.  On 28th April 2005 an agreed statement of issues duly signed by advocates for the Plaintiff and the Defendants was filed. The case was fixed for hearing on 19th May 2005. Apparently hearing never took place.

4.     The Plaintiff then filed chamber summons dated 13th August 2008. That application is the subject of this ruling.  It seeks the main order that the Defendants be restrained “from selling, disposing of, trespassing into, constructing buildings, cutting trees, burning vegetation, cultivating or in any other manner interfering with (the suit land) pending hearing and determination of the suit. The application was brought under Order XXXIX, rules 1, 2, 2A ,3 and 9 of the then Civil Procedure Rules (the Rules). The inherent power of the court under section 3A of the Civil Procedure Act, Cap 21 (the Act) was also invoked.

5.     The grounds for the application on the face thereof are -

(i)That the Plaintiff is the registered owner of the suit land.

(ii)That since November 2002 the Defendants “have been trespassing, cultivating, cutting trees, clearing and burning vegetation” in the suit land.

(iii)That the Defendants are threatening to sell or dispose portions of the suit land.

(iv)That the 1st Defendant “has been constructing a building in the (suit) land since 5th July 2005”.

There is a supporting affidavit sworn by the Plaintiff.

6. The Defendants filed a replying affidavit on 12th October 2007 and a further replying affidavit on 23rd November 2007. Both are sworn by the 1st Defendant. In these affidavits the Defendants assert that the Plaintiff is their uncle; that the suit land comprises family land which in 1991 was sub-divided into three portions and allocated to the three households of the family; and that each household has been peacefully occupying its portion since that time.

7. In a supplementary affidavit filed on 30th November 2007 the Plaintiff states that the family land was Plot No 81 (not Plot NO. 81B which was subdivided into Plot No. 81A (registered in the names of Kabaka Musango and Mwinzi Mutolonga (his nephews) and Plot No 81B which was registered in his name; that the subdivision was done by the clan and was subsequently endorsed by the Adjudication Officer of the area; that therefore Plot No. 81B (the suit land) is no longer family land; and that the Defendants subsequently and wrongfully trespassed into the suit land.

8.     I have considered the submissions of the learned counsels appearing. No authorities were cited.

9.     I have noted that the present application was filed about five (5) years after the suit was filed. I have also noted that this is a dispute involving close family members over what was at least originally family land.  I have also noted that all the parties are in occupation.

10.   I am of the considered view that any temporary injunction intended to remove or keep away any of the parties from the suit land will not be in the interests of justice and can only worsen the dispute between the parties.   What the parties should work towards is hearing and final determination of the suit so that their respective claims in the suit land can be adjudicated upon. Interlocutory applications and orders can only delay this.

11.   However, the suit property ought to be preserved pending disposal of the suit.  So, while refusing the Plaintiff’s application by chamber summons dated 13th August 2008 (which is hereby dismissed with costs in the cause) I will nonetheless restrain all the parties from selling or in any way alienating any portion of the suit property pending disposal of this suit. Those will be the orders of the court.

13.   The delay in preparation of this ruling is deeply regretted. It was caused by my poor state of health the last few years.  But thanks God I have now regained my full health.

DATED AT NAIROBI THIS 16TH DAY OF AUGUST 2012

H. P. G. WAWERU

JUDGE

COUNTERSIGNED AND DELIVERED AT MACHAKOS THIS 28TH DAY OF SEPTEMBER 2012

ASIKE-MAKHANDIA

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JUDGE