Pamela Naliaka Makokha & Phanice Ayuma Karupa v Mutimba Lutoma & James Biketi [2014] KEHC 2764 (KLR)

REPUBLIC OF  KENYA

IN THE HIGH COURT AT KAKAMEGA

LAND &  ENVIRONMENT CASE NO:  176  OF  2013

PAMELA  NALIAKA  MAKOKHA...........................................1st APPLICANT

PHANICE  AYUMA KARUPA................................................2ND APPLICANT

VERSUS

MUTIMBA LUTOMA.......................................................1ST  RESPONDENT

JAMES  BIKETI.................................................................2ND RESPONDENT

R U L I N G

The plaintiff’s application dated 11/6/2013 is seeking several orders including an order of injunction restraining the defendants from interfering with her peaceful occupation of plot number NORTH KABRAS/SURUNGAI/621 pending the hearing and determination of this suit.  The application is supported by her affidavit sworn on the same date.

The defendants swore a joint affidavit on 25/7/2013.  Counsels for both parties agreed to rely on the application and replying affidavit.  The applicant contends that she was married to the first respondent’s grandson.  She had one child with the 1st respondent’s grandson who is the 2nd applicant.  The 1st applicant’s husband is now deceased.  She has been living on the suit land with her child but the defendants have threatened her with eviction.  She would like to be registered as a co-owner to the property.

On their part the respondent’s maintain that the 1st respondent is the registered owner of the suit land.  He has sold two acres to the 2nd respondent.  The applicant was merely a girl friend to the 1st defendant’s grandson and has no lawful claim over the suit land.

The record show that the 1st applicant husband died of a road accident on 18/12/2011.  It is also established that the plaintiffs live on the suit land.  The entire land is 2. 8 hectares.  Since the 1st respondent is the registered owner of the land, he has the right to sell a portion of the land.  He contends that he has sold two acres to the 2nd defendant.   The defendants seem to deny that they intend to evict the applicant from the suit land.

Having some through the plaintiff’s application, I do find that most of the orders can only be granted after a full hearing.  All what is relevant at this moment is for the applicant to continue living on the suit land pending the determination of this suit.

In the end, I do find that the 1st defendant is at liberty to sell two (2) acres to the 2nd defendant provided that those two acres do not include the portion occupied by the applicant.  The application dated 11/6/2013 is granted in terms of prayer (c) only but it is only limited to restraining the defendants from evicting or interfering with the plaintiff’s occupation of part of the suit land.  The other prayers shall wait for the hearing of the main suit.  Costs shall also await the outcome of the main suit.

Dated, delivered and signed at Kakamega this 17th day of September 2014

SAID J.  CHITEMBWE

JUDGE