Rosina Habona Ayub & Zephania Joseph Warda v Elizabeth Yido Rhigho Alias Elizabeth Kayanda [2014] KEHC 6871 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT MALINDI

LAND CASE NO. 151 OF 2013

1. ROSINA HABONA AYUB

2. ZEPHANIA JOSEPH WARDA....................................PLAINTIFF/APPLICANT

=VERSUS=

ELIZABETH YIDO RHIGHO alias

ELIZABETH KAYANDA.............................................DEFENDANT/RESPONDENT

R U L I N G

Introduction

Before me is the Plaintiff's Application dated 19th July 2013 seeking for the following reliefs:

(a) THAT  this Honourable Court be pleased to issue an order of temporary injunctive orders restraining the Defendant/Respondent and/or her agents and/or her servants and/or her relatives and/or whoever acting on her behalf from invading and/or entering and/or trespassing and/or alienating the suit premises, being Plot No. TRCC/HOL/ZONE/06/100-HOLA MISSION, situated at Hola within Tana River Country or doing anything detrimental to the Plaintiff's/Applicant's interest or rights over the suit premises herein, pending the hearing and determination of this suit.

(b)    THAT costs of this Application be provided for.

The Application is supported by the Plaintiff's affidavit.

The Plaintiff's/Applicant's case:

According to the 1st Plaintiff’s deposition, the Plaintiff bought plot number RCC/HOL/ZONE/06/100-HOLA MISSION from one Joseph Galogalo Guyo and his wife for a sum of Kshs.45,000.  The suit property was initially owned by the Defendant who sold it in the year 1994.

After the said purchase, the Plaintiffs were formally allocated the property by the County Council of Tana River on 7th February 2012; that the Defendant made a claim before the village committee in respect to the suit property and that the committee in its Ruling of 26th February 2013 confirmed that the Plaintiffs were the rightful owners of the Plot.

The 1st Plaintiff finally deponed that around February 2013, the Defendant unlawfully invaded  the suit property.

The Defendant did not file a Replying Affidavit although he was served with the Application on 28th September 2013.

The Plaintiff's advocate filed his submissions on 25th October 2013 which I have considered.

Analysis and findings

The Plaintiffs have annexed on their Supporting Affidavit the Agreement of sale between themselves and Joseph Galogalo Guyo in respect to the suit property.  The said agreement is duly executed and attested.  The Plaintiffs have also annexed the letter of allotment from the County Council of Tana River and the decision of the village committee, Hola Mission, showing that the Plaintiffs are the owners of the suit property.

The Defendant has not rebutted the Plaintiffs' depositions.  In the premises, and on the material placed before me, I find and hold that the Plaintiffs have established a prima facie case with chances of success. The Plaintiffs are also likely to suffer irreparable damage that may not be compensated by way of damages unless the injunctive order is issued.

For the reasons I have given above, I allow the Plaintiffs' Application dated 19th July 2013 as prayed.

Dated and Delivered in Malindi this 28th Day of February,2014

O. A. Angote

Judge