[2012] KEHC 582 (KLR)

REPUBLIC OF KENYA

High Court at Machakos

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FESTUS MWANGANGI MASILA...............................................................PLAINTIFF/APPLICANT

VERSUS

1. ERIC KYALO MUTINDA

2. PHILLIP MWANZA...............................................................DEFENDANTS/RESPONDENTS

R U L I N G

Before me is an application dated 29th October 2008 filed by the plaintiff Festus Mwangangi Musyoka. It is a Chamber Summons that seeks temporary injunctive orders against the 1st defendant Eric K Mutinda. The application has grounds on the face of the Chamber Summons. I must state that the typed documents (both for the application and affidavit) are not easy to read, as they are very faint. Suffice to state that the matter relates to land in which the plaintiff claims to have an interest as an administrator and beneficiary in succession. It is also appropriate to state that an interim injunction pending the hearing and determination of the application inter partes, was granted by the court on the November 2008.

The application is opposed. A replying affidavit sworn by Eric Kyalo Mutinda the 1st defendant on 22nd December 2008 was filed. It was deponed, inter alia, that Eric Kyalo Mutinda had bought land parcel Mulango/Kathungi/385 from the deceased when the same was fallow, and had now developed it by building a homestead. That Wilson Munyasya Mutui (now deceased) was the original owner of land parcel number Mulango/Kathungi/387. That the issue of the relation between land parcel No. Mulango/Kathungi/387 and Mulango/Kathungi/385 had been resolved in a decision made by the court in the Principal Magistrate’s Civil Case No. 326 of 2008 at Kitui, a copy of which ruling was annexed to the affidavit.

In response to the replying affidavit, the plaintiff/applicant filed a supplementary affidavit on 25th February 2009. It was deponed inter alia that both CMCC Nos. 450 of 2007 and 326 of 2008atKitui were discontinued before final substantive decisions on merits were made. Annexed to the affidavit were notices of withdrawal of the two suits dated 28th May 2008 for Kitui SRMCC 450 of 2007, and 15th October 2008 with regard to Kitui SRMCC No. 326 of 2008.

Parties’ counsel filed written submissions. The plaintiff/applicant filed submissions through counsel M/s Kinyua Musyoki & Companyon 9th November 2012. The defendants filed their submissions through their counsel J.K. Mwalimu & Company earlier on 8th June 2012. On the hearing date, counsel for the plaintiff/applicant did not attend court. Mr Mwalimu for the defendants relied on submissions filed.

I have perused and considered the submissions.

This is an application for an interlocutory injunction. The parameters for consideration by the court in such an application are well settled. They were clearly spelt out in the case of Giella –vs Cassman Brown Ltd (1973) EA 358. An applicant has to show that he had a prima facie case with probability of success. Secondly, an injunction will not normally be granted unless an applicant will otherwise suffer irreparable loss or damage which cannot be adequately compensated in damages. Thirdly, if the court is in doubt, it will determine the application on the balance of convenience.

The issue in question revolves around the ownership of land. The plaintiff/applicant appears to have been claiming that the 1st defendant is developing the wrong piece of land. There is a dispute as to the exact portion of the land that was sold to the 1st defendant. That issue on the correctness of land sold will be determined in the main cause. In the meantime, however, I am of the view that the plaintiff/applicant has a prima facie case with probability of success.

Will the plaintiff/applicant suffer irreparable loss if an injunction is not granted? The plaintiff claims that the portion of land being developed by the 1st defendant is not the correct portion sold to him. In my view, if the injunctive orders sought are not granted, the plaintiff will suffer irreparable loss. Further development of the land might completely change its nature.

The balance of convenience is also in the plaitniff’s favour, as he represents the estate of the deceased, who sold the land to the 1st defendant.

I cannot end this ruling without stating that the proceedings in the two earlier cases filed at the Kitui Magistrate’s Court SRMCC 450/07 and SRMCC 326/08 were withdrawn. Those cases no longer exist. The interlocutory decisions or rulings made in those cases are no longer on record. They cannot therefore be relied upon by any of the parties, as the orders or rulings made in those cases no longer exist. The 1st defendant cannot therefore rely on those decisions.

In the result, I allow the application dated 29th October 2008 and grant prayer 3. Costs in the cause.

Dated and delivered this 15thday ofNovember 2012.

George Dulu

Judge

In the presence of:

Mr K Musyoki for Plaintiff/Applicant

N/A for Defendant/Respondent

Mutinda – Court clerk