PETER SMITH NDILE vs OBADIA KANYANDE MWANGI & MUNICIPAL COUNCIL OF KITUI [2004] KEHC 473 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL SUIT NO. 34 OF 2004

PETER SMITH NDILE ::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

OBADIA KANYANDE MWANGI

MUNICIPAL COUNCIL OF KITUI  :::::::::::: DEFENDANT

R U L I N G

By a chamber summons dated 29. 3.2004 and filed in court on the same date the plaintiff/applicant seeks orders of injunction to restrain the 1st defendant and his agents from entering into, constructing or in any way interfering with the plaintiff’s plot No. C situated at Kitui Municipality and secondly that the 2nd defendant be restrained for re-allocating the suit premises to the 1st defendant or any other person or from supervising or approving construction on the suit premises by 1st defendant and his agents.

The grounds upon which the application is founded are that the plaintiff is the bona fide owner of the said plot having purchased it from an allottee, that the applicant has been paying all revenue in respect of the plot to the 2nd defendant and that he will suffer irreparable loss if the order of injunction is not granted.The applicant also filed an affidavit of the same date in support of the said application. In which he had annexed the sale agreement between himself and one Consolata Wamucii Wambugu (PSM 1). It is dated 7. 7.1997. He also annexed as PSM 3 and 4 letters from the 2nd defendant’s town clerk to Commissioner of Lands advising him to transfer the suit premises to the plaintiff. He annexed receipt PSM 8 rents in respect of the said plot. In October 2003 revisited the plot and found 1st defendant clearing it and fencing it off. He complained to 2nd defendant (PSM 6) and 2nd defendant confirmed that the plot belonged to Consolata Wamucii as per their records and denied being aware of the party fencing it off. When plaintiff reported to the C.I.D. about the trespass the 1st defendant was summoned and promised notification of allocation which is being investigated. He fears that the said plot may be allocated to another and hence sought the court’s intervention.

The application came up for hearing on 6. 5.2004. The 1st defendant was present in person whereas the 2nd defendant was represented by Mr. Musyoki Advocate. Mr. Musyoki had no reply to the said application.

The 1st defendant had told court that he was not served but after further enquiries the court found that he had been served and given his papers to an advocate who had not appeared or filed any papers. The court could not grant 1st defendant an adjournment following the falsehoods he had told the court that he was not served. He could not reply having filed no papers.

For an order of injunction to issue the applicant has to show that he has a prima facie case with good chances of success. The applicant has annexed a sale agreement dated 7. 7.1997 between himself and one Consolata Wamucii Wambugu. The letter of allotment PSM 2 shows that the said Consolata was indeed the allottee of the plot. PSM 3 a letter from the 2nd defendant to the Commissioner of Lands dated 28. 6.1999 does show that the 2nd defendant wanted the land transferred into the names of the plaintiff Peter Smith Ndile from that of Consolata Wamucii. PSM 7 further confirms that the 2nd defendant had not allotted the plot to anybody else and were not aware of developments by any other person. This evidence clearly shows that the plaintiff has shown to court that he indeed has made a prima facie case with good chances of success.There is no evidence availed by the defendants to the contrary. Infact 2nd defendants by not contesting the application must be conceding to the facts as put forward by the plaintiff/applicant.

Will the plaintiff/applicant suffer irreparable loss that cannot be compensated for in terms of damages? What is in issue is land. If the 1st defendant goes ahead with the construction I believe that the plaintiff/applicant will suffer such harm that is not capable of being compensated for by damages.

Accordingly I do find that the plaintiff/applicant has laid basis for orders of injunction to be issued by this court and I accordingly order that 1st defendant be restrained for entering in any way with the plot No. C till hearing and determination of his suit. Since the 1st defendant is said to have had a notification of allotment, it may be that a person in the council is acting fraudulent and the court will grant the 2nd prayer restraining 2nd respondent from rewww. allocating the said plot C or allowing the 1st defendant to construct on it pending hearing and determination of the suit.

Costs will be costs is the cause.

Dated, read and delivered at Machakos this ……………… day of

………………………. 2004.

R. V. WENDOH

JUDGE