M'Ndegwa M'Nabea v Isaiah Kilemi(Sued as the Legal Representative of the Estate of M'Itaru M'Lingera -Deceased), Reuben Nchana, Nicholas Kalunge, Maria Nkirote, Stella Karimi, Florence Mwari, Richard Ntombura, Wilson Kamwiko & James Kathaiai Mutunga [2016] KEHC 5835 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

E&L CASE NO. 145 OF 2014

M'NDEGWA M'NABEA....................................................................................................PLAINTIFF

VERSUS

ISAIAH KILEMI (sued as the legalRepresentative of the Estate of M'ITARU M'LINGERA -Deceased) ........................1ST DEFENDANT/RESPONDENT

REUBEN NCHANA............................................................. ....2ND DEFENDANT/RESPONDENT

NICHOLAS KALUNGE ….........................................................3rd DEFENDANT/RESPONDENT

MARIA NKIROTE.....................................................................4TH DEFENDANT/RESPONDENT

STELLA KARIMI......................................................................5TH DEFENDANT/RESPONDENT

FLORENCE  MWARI................................................................6TH DEFENDANT/ RSPONDENT

RICHARD NTOMBURA............................................................7TH DEFENDANT/RESPONDENT

WILSON KAMWIKO...............................................................8TH DEFENDANT/RESPONDENT

JAMES  KATHAIAI MUTUNGA ..............................................9TH DEFENDANT/RESPONDENT

R U L I N G

This application is dated 24/09/2014 and seeks orders:-

That the application because of its nature be certified urgent and the same be heard ex-parte in the  1st instance.

That Honourable Court be pleased to issue a temporary order of injunction restraining the 2nd defendant by himself, his agents, assigns or persons claiming under him from entering into, fence off and or in anyway interfere with the plaintiff's use and or proprietary rights over land parcel No. KIANJAI ADJ. Section/4523 pending the hearing and determination of this application.

That the Honourable Court be  pleased to issue a temporary order of injunction restraining the 2nd defendant by himself, his agents, assigns or persons claiming  under him from entering into, fence off and or in anyway interfere with the plaintiff's use and or proprietary rights over land parcel No. Kianjai Adj. Section/4523 pending the hearing and determination of this suit.

That  the Honourable Court be pleased to issue interim orders of  injunction restraining the defendants by themselves , their agents, assigns and or persons claiming under them from sub dividing, alienating, selling and or transferring land parcel Kianjai Adj. Section 4523, 4533, 6243, 6244, 6245, 6246, 6247, 6248, 6249, 6250,6251,6252, 6253, 6254, 6255, 6256, 6257 and 6258 and or in anyway interfere  with the plaintiff's use, occupation  and or proprietary rights over the same pending the hearing and determination of this application inter-parties.

That the Honourable  Court be pleased to issue interim orders of injunction restraining the defendants by themselves, their agents, assigns and  or persons claiming under them from  subdividing , alienating, selling and or transferring land parcels Kianjai Adj. Section 4523, 4533, 6243, 6244, 6245, 6246, 6247, 6248, 6249, 6250,6251,6252, 6253, 6254, 6255, 6256, 6257 and 6258 and  or in anyway interfere with the plaintiff's use occupation and or proprietary rights over the same pending the hearing and determination of this suit.

That these orders once issued be served  upon the District Land Adjudication and Settlement Officer-Tigania  West for compliance.

That costs of this application be costs in the cause.

The application is buttressed by the affidavit of M'NDEGWA M'NABEA and has the following grounds:-

The Plaintiff  who is aged about 80 years has all his lifetime lived, cultivated and occupied land parcel  4523 and 4533 Kianjai Adj. Section.

That 1st defendant with intent to defeat the Plaintiff's interest has transferred Parcel No. 4523 to the 2nd Defendant.

That land parcel  4523 was a subject in a Court case to wit Tigania Civil Case  No. 132/2010.

The Defendant in Tigania Civil Case 132 of 2010 M'ITARU M'LINGERA now deceased  was father to the 1st defendant.

Land parcel No.  4523 was transferred during the pendency of Tigania Civil case.

The 2nd defendant to whom land  parcel No 4523 was transferred is interfering with the Plaintiff (sic) use and occupation of the same and threatening eviction.

The 1st Defendant's father now deceased  clandestinely  and with fraudulent intention  subdivided land parcel No.  4533 into 16 portions which he transferred to his children and close family members.

The plaintiff stands to suffer irreparably  and no amount of damage can compensate.

Defendants stand to suffer no prejudice  as none of them are either in use or occupation.

The parties have put in Written Submissions. They  have postulated  diametrically opposed assertions regarding ownership and occupation of Land parcel No. 4523, Tigania Adjudication area. The 2nd Defendant has submitted that he bought parcel No. 4523 from  the 1st defendant and when he bought it there were no restrictions restraining any  transfer or other dealings  with the suitland.  He  avers that he is a purchaser for value.  He even claims that at the time he  fenced  parcel No 4523, it is the Plaintiff who showed him the boundaries.

At this stage, I am unable to make any determination with respect to the conflicting assertions  proffered by the parties.  This can only be done after the suit is heard in full.

The plaint in this suit places in dispute parcel No 4523 only.  This application has parcel Nos:  4523, 4533, 6243, 6244, 6245, 6246, 6247, 6248, 6249, 6250,6251,6252, 6253, 6254, 6255, 6256, 6257 and 6258. The Plaintiff does not claim that parcel  Numbers  6243 to 6258  are  Subdivisions  of parcel No. 4523.  In his statement the Plaintiff says that they were subdivisions of parcel no. 4533.  This application is rendered unmeritorious by the introduction of parcels of land which are not alluded to in the plaint.

I opine that introduction of parcels of land not claimed in the plaint is beyond matters validity within the ambit of what this Court can determine.  for this reason, I find the application  incompetent.  It is therefore dismissed in its entirety.

Costs shall be in the cause.

It is so ordered.

Delivered in Open Court at Meru this 30th day of March, 2016 in the presence of:

CC: Daniel/Lilian

P. M. NJOROGE

JUDGE