[2013] KEHC 1424 (KLR)
The court found that although the applicant may have a valid claim regarding the unlawful use of the land, the application for injunction was filed after the defendants had already taken possession and developed the land. The applicant did not contest the defendants' affidavits, particularly the 4th defendant's...
Source-derived case information.
- Citation
- [2013] KEHC 1424 (KLR)
- Parties
- Plaintiff: Humultone Marakia Wambeye (suing as the administrator of Ainea Wambeye Wakhabu, deceased); Defendant: Saul Masika Makasi; Defendant: Enock Mukhwana Wanyonyi; Defendant: David Waliaula Kipei; Defendant: Solomon Sifuna
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 29 of 2012
- Procedural Posture
- Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application for injunction partially allowed.
- Legal Topics
- Injunctions, Trespass, Estate Administration, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Humultone Marakia Wambeye (suing as the administrator of Ainea Wambeye Wakhabu, deceased)
Plaintiff
Saul Masika Makasi
Defendant
Enock Mukhwana Wanyonyi
Defendant
David Waliaula Kipei
Defendant
Solomon Sifuna
Defendant
Procedural Posture
Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the defendants from constructing on or disposing of land parcel BOKOLI/CHWELE/204 pending determination of the suit.
- 2 Whether the applicant has met the legal threshold for the grant of an interlocutory injunction.
- 3 Whether the defendants' continued occupation and development of the suit land is unlawful.
Ratio Decidendi
The court found that although the applicant may have a valid claim regarding the unlawful use of the land, the application for injunction was filed after the defendants had already taken possession and developed the land. The applicant did not contest the defendants' affidavits, particularly the 4th defendant's claim of residence and development. The court held that while the defendants should not be evicted or restrained from using the land as currently occupied, they should be restrained from undertaking new construction or disposing of the land pending the suit's determination. The status quo regarding cultivation and occupation is to be maintained. Costs of the application will abide...
Court Disposition
Application for injunction partially allowed.
Orders
- Defendants, their servants, agents, and relatives are restrained from carrying out any construction on or disposing of the suit land pending determination of the suit.
- Status quo regarding cultivation and occupation to be maintained.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 29 of 2012
HUMULTONE MARAKIA WAMBEYE
[suing as the administrator of AINEA WAMBEYE WAKHABU(DECEASED)..... PLAINTIFF
VERSUS
SAUL MASIKA MAKASI.................................................................................…1ST DEFENDANT
ENOCK MUKHWANA WANYONYI....................................................................2ND DEFENDANT
DAVID WALIAULA KIPEI …............................................................................. 3RD DEFENDANT
SOLOMON SIFUNA …......................................................................................4TH DEFENDANT
RULING
The applicant has sued the four defendants by a plaint and has filed an application within the suit under Order 40 seeking temporary orders of injunction. During the hearing of the application, what is for determination is prayer (d) and (e) of the application which is;
(d) THAT the Defendants/Respondents by themselves, their servants, agents and or relatives or any other persons claiming through them be restrained from encroaching on, constructing on,cultivating on and or in any way interfering with the Plaintiff's/Applicant's land parcel number BOKOLI/CHWELE/204 pending the hearing and determination of this suit.
(e). THAT costs of this application be provided for.
The Applicant depones that he is the legal administrator of the estate of his father AINEA WAMBEYE WAKHABU - deceased He depones further that the defendants have unlawfully and without any justification entered and trespassed on L.R. BOKOLI/CHWELE/204 constructing structures and cultivating the same without his consent. Finally that the defendants purport to have purchased land from persons who had no capacity to deal, therefore the estate of the deceased is likely to suffer irreparable loss and damage should construction proceed.
The defendants have opposed the application. The 1st defendant deponed on behalf of 2nd & 3rd defendant that they have been using the suit portion of land since time of purchase (13. 12. 2003 & 6. 10. 03). They want title deeds for the sold portion issued to them and have no intention of alienating the land. At paragraph 7, 1st defendant depones that granting the orders amount to constructive eviction.
The 4th defendant's case is that he purchased a portion of his land from the 1st defendant. He also opposed the application. He depones at paragraph 6 that he is in occupation of the land and has constructed a residential house and other developments on it. He does not know the plaintiff/applicant. According to him, the applicant is trying to settle scores with the 1st defendant and he should not be made part of it. He avers the applicant has not met the basic principles for granting injunctions.
The applicant submits the defendants' use of the land is unlawful. This may be so but it seems this application was filed long after the defendants moved into the suit land. This is deduced from the pleadings, in prayer (a) of the plaint, the applicant is seeking eviction orders. The applicant did not file further affidavit to contest the issues raised in the replying affidavits especially the 4th defendants averment that he lives on this land.
Mrs. Mumalasi submitted that the 2nd defendant is erecting a permanent structure. The court is not told the nature of other structures already built on the land. However this fact has not been denied by the 2nd defendant. Although the defendants are already in occupation, it will be in the interest of justice that pending determination of this suit, they be restrained from undertaking new activities/developments on the suit land. Given the circumstances of this case, I can only allow prayer (d) partially, to the extent that the defendants by themselves, servants, agents and relatives claiming through them be restrained from carrying out any construction on or disposing of the suit land pending the determination of the suit. As regards prayer on cultivation, the status quo to remain. he costs of the application shall abide outcome of the suit.
RULING DATED, SIGNED AND DELIVERED in open court this 5th day of November, 2013.
A. OMOLLO
JUDGE.