Munde( Nee Mwalughali) and 7 Others v Kaonga (Misc. Civil Case 120 of 2016) [2017] MWHCCiv 15 (19 June 2017)

Taona Frances Munde and 5 others v Joseph Kaonga Miscellaneous Civii Cause No 120 of 2016 MzHC IN THE HIGH COURT OF MALAWI MZUZU REG ISTRY: CIVIL DIVISION MISC. CIVIL CAUSE NO. 120 OF 2016 Between TAONA FRANCIS MUNDE {NEE MWALUGHALI} ........................... ....... ........... .. 1sr PLAINTIFF JOY K!NYANGWA MWALUGHALI ................................................. .................. zNo PLAINTIFF MATHIAS f\.~WALUGHALI ............................................................................... 3RD PLAINTIFF MILICA MANDA (NEE MWALUGHALI) .............. .................... .... .................. .... 4rn PLAINTIFF JANE CHiSENGA (NEE MWALUGHALI) ......................................................... ... 5rn PLAINTIFF PATRICIA KAUZA (NEE MWALUGHAU} ....... ..... .............................................. 7TH PLAINTiFF -and- JOSE PH KAONGA ..... .. .... .. .. .............. ..................... ....... ...................... ...... ..... ... DEFENDANT CORAM: HONOURABLE JUSTICE D. A. DEGABRIELE Plain tiffs/Counsel for Plaintiffs absent, but duly served Mr. Mbotwa Mr A. Kanyinji DeGabrie!e, J Introduction of Counsel for the Defendant Official Interpreter RULING • The plaintiff herein were granted an ex parte injunction pursuant to Order 29 of the RSC th roug h their counsel on st11 December 2016 restraining the defendant - and his agents or servants from trespassing , encroaching or carrying out any developments on the disputed piece of land which belongs to the plaintiffs pending the hearings and detern,ination of the main action by the court or until Taona Frances fViunde ancf 5 others v Joseph l<aonga Miscellaneous Civil Cause No 120 of 2016 MzHC another order made by the court. The court ordered that the plaintiffs should file the main action within 7 days, and the summons must be heard vv1ithin 14 days The defendant filed an inter partes summons on application for vacation of an order of injunction under Order 29 rule 1/22 of the RSC . The summons was duly served on the plaintiffs through their counsel and service was acknowledged and accepted. The court proceeded to hear the application. The defendant argues that the injunction must be vacated on the grounds that the plaintiffs failed to disclose material facts, and that there is no triab!e issue. The defendant claims he was given the land in 2008 and has subsequently applied and obtained a lease. The plaintiffs by their own admission in the affidavit in support of the ex parte injunction state that they never lived in the area and had other family members looking after their interests. The evidence of the defendant shows that the plot was sold to him by one Marness Lugha!i who is one of the late aunties of the plaintiff who was caretaking on the land in issue. To this end I am of the opinion that the issue of ownership or user rights would have been dealt with effectively through a writ of summons app!ication and not an injunction. Furthermore, the applicants can seek remedies elsewhere since there is no initial proof of fraudulent dealings. The plaintiffs \,vere served and acknowledged service but they have not appeared in person or through counsel, giving the impression that they are not interested to enforce their rights. For this reason, I vacate the injunction accordingly. Costs for this action are for the defendant. Made in Chambers at !\1zuzu Registry this 19th day of June 2017 - - JUDGE