PATRICK MUBATSI NAMBIRO & Another v SOLOMON WATITWA MUNGONI & 3 Others [2012] KEHC 3068 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

CIVIL CASE 35 OF 2011

PATRICK MUBATSI NAMBIRO ……...............................…. 1ST PLAINTIFF/APPLICANT

PETER NAMBIRO MUBATSI ………..............................… 2ND PLAINTIFF/APPLICANT

VERSUS

SOLOMON WATITWA MUNGONI ............................… 1ST DEFENDANT/RESPONDENT

MUNICIPAL COUNCIL OF MUMIAS ............................ 2ND DEFENDANT/RESPONDENT

COMMISSIONER OF LANDS……….......................…. 3RD DEFENDANT/RESPONDENT

ATTORNEY GENERAL ………………....................….. 4TH DEFENDANT/RESPONDENT

RULING

The application by way of Chamber Summons dated 21. 3.11 presently seeks for orders as follows:-

That there be a temporary injunction restraining the 1st Defendant/Respondent, his agents, servants or any other person claiming on his behalf from entering into, interfering with in any manner with the plaintiffs’ quiet use, occupation, use of the Mumias Town UNS. Comm. Plot No. 68, letter of allotment Ref. No.423/V/118 dated 15. 6.1995 pending the hearing and determination of this suit. In the alternative, an order that the status quo be maintained pending hearing and determination of this suit.

The applications is based on the grounds stated in the body of the application and is supported by the affidavit of PATRICK MUBATSI NAMBIRO, the 1st applicant.  In the said affidavit, it is averred that the 2nd applicant, PETER NAMBIRO MUBATSI was allocated Plot No. 68 in Mumias Town in the year 1962. That the plot was compulsorily acquired by the Government but was allocated again to the 2nd respondent  1995. That the said applicant developed the said plot by erecting a Commercial building in which stands a Posho Mill, office space e.t.c. That the 2nd applicant allowed his son, the 1st applicant to apply for the plot to be allocated to him. The plot was allocated to him and he paid the requisite charges and he continued paying rent, rates and other levies. That one ALI GEORGE WANGARA, an employee of the 2nd respondent, Municipal Council of Mumias allocated himself plot No. 69 then sold it to the 1st respondent, SOLOMON WATITWA MUNGONI. That the 1st respondent started fencing plot No. 69 and in the process fenced off part of the applicant’s plot and delivered building materials to the site, prompting the ongoing dispute.

The application is opposed as per the replying affidavit sworn by the 1st respondent, SOLOMON WATITWA MUNGONI on 18. 5.11. The 2nd respondent also opposed the application as per the replying affidavit sworn by J. A. KUTEKHA, the Town Clerk.

The 1st  respondent stated in his affidavit that his plot is No. 69 which he purchased from ALI GEORGE WANGARA for a consideration of Kshs.400,000/=. That he had the plot surveyed and transferred from the initial allottee to himself. That he paid all the transfer fees and obtained a title deed for the plot. He had building plans approved and began construction works on the plot. The 1st respondent asserted that he is building on his plot No. 69 and not on the applicant’s plot No. 68 which is yet to be surveyed.

The 2nd respondent blames the applicants for violating the By-Laws and the Local Government Act and trying to put up un-approved structures which did not meet the required standards. The 2nd respondent saw the application by the applicants as unmeritorious.    The 2nd respondent has not made any comment on the allegations made specifically against one Mr. GEORGE WANGARA who is said to be its employee. The 2nd respondent has also not shed any light on the actual position on the ground in respect of plot No. 68 and No. 69. The 2nd respondent has also not shed light on what steps he has taken against the applicants if they have violated any of its by –laws.

It is not denied that the 2nd respondent was allocated Plot No. 68. It is also not denied that the applicants have developed Plot No. 68 and is in occupation of the same. Prima facie, the applicants have established a case to warrant the issuance of a temporary order restraining the 1st respondent as prayed in prayer No. (b) of the application. However, the applicants have since the year 2004 commenced other suits which were never prosecuted to the conclusion as the cases ended prematurely without any determination being reached. Since there are building materials on Plot No. 69, I find it reasonable to order that the applicants do deposit security for any loss that may be suffered by the 1st respondent in the event that it turns out in the end that the order of injunction issued was not necessary. The applicants are hereby ordered to deposit security for the sum of Kshs.1,000,000/= within 30 days from the date hereof in default the orders issued herein to lapse.

Delivered, dated and signed at Kakamega this 28th day of June, 2012

B. THURANIRA JADEN

J U D G E