[2013] KEHC 2002 (KLR)
The court found that the applicant failed to specify which parcels of land were occupied by the defendants at the time the status quo order was issued and which parcels were in use by the applicant. The applicant made general allegations without clear evidence of specific interference or irreparable harm. The court...
Source-derived case information.
- Citation
- [2013] KEHC 2002 (KLR)
- Parties
- Plaintiff: Kennedy Khwatenge Wanyonyi (suing as the Personal Representative of the estate of Simeon Wanyonyi Khwatenge - Deceased); Defendant: Gabriel Lusamamba; Defendant: James Mafura
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 82 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Temporary Injunction
- Outcome
- application dismissed
- Legal Topics
- Temporary Injunctions, Status Quo Orders, Succession Disputes, Irreparable Harm, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Khwatenge Wanyonyi (suing as the Personal Representative of the estate of Simeon Wanyonyi Khwatenge - Deceased)
Plaintiff
Gabriel Lusamamba
Defendant
James Mafura
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Temporary Injunction
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the defendants from interfering with the suit properties pending determination of the suit.
- 2 Whether the applicant has demonstrated irreparable harm or a prima facie case to warrant the grant of an injunction.
- 3 Whether the application meets the principles established in Giella v. Cassman Brown for the grant of interlocutory injunctions.
Ratio Decidendi
The court found that the applicant failed to specify which parcels of land were occupied by the defendants at the time the status quo order was issued and which parcels were in use by the applicant. The applicant made general allegations without clear evidence of specific interference or irreparable harm. The court held that the application did not meet the threshold for the grant of a temporary injunction as set out in Giella v. Cassman Brown. The status quo order previously issued was sufficient to preserve the rights of the parties pending the determination of the suit. Consequently, the application for a temporary injunction was dismissed with costs to the defendants.
Court Disposition
application dismissed
Orders
- The application for a temporary injunction is dismissed with costs to the defendants.
- The status quo prevailing on the deceased's estate at the moment be maintained.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCC NO. 82 OF 2010
KENNEDY KHWATENGE WANYONYI
(suing as the Personal Representative of the estate of
SIMEON WANYONYI KHWATENGE - DECEASED ….............. PLAINTIFF
VERSUS
GABRIEL LUSAMAMBA ..............................................1ST DEFENDANT
JAMES MAFURA ….................................................. 2ND DEFENDANT
RULING
This is an application for temporary injunction brought by the applicant seeking to restrain the defendants and their agents from tilling, ploughing, cutting down crops, planting crops or harvesting crops or acting in any other manner that is likely to interfered with the applicants occupation and use of L.R. No. KAKAMEGA/MOI'S BRIDGE/1160, 1162, 1161, 1163, 1164 AND 1165 pending the hearing and determination of this suit.
The application is premised on the grounds on the face of it and the supporting affidavit. The applicant depones that the defendants have been thorns in his life as they have prevented him and his siblings from peacefully occupying and using the suit lands. Further that the defendant put up structures on 26th March 2010 after the death of their father.
More recently, on 17th March the 1st defendant with four others started construction on the suit land armed with crude weapons.
The application is opposed by the defendants who filed their replying affidavits. Both defendants have annexed an order issued by D. Onyancha J on 26th October 2010 which required status quo to be maintained. The 1st defendant avers that the plaintiff caused him to be arrested on 18. 3.13 whereupon he was forced to sign annexture KKW 3 (e) (a letter committing to pay the applicant Kshs. 2000/=).
The 2nd defendant accused the applicant to be the one inter-meddling with the estate of the deceased. He added this application is an abuse of the court process, frivolous and vexatious.
I have read the order annexed issued by my learned brother D.A. Onyancha on 26th October 2010 regarding the maintenance of the status quo. Therefore by the applicants own admission in paragraph 6 of his supporting affidavit, the defendants had already constructed structures on the suit land. He alleges the defendants “day by day encroached and penetrate on to the suit lands.” It is not clear why the succession matter has not been pursued to the end from the time the order was issued. The applicant did not specify which parcels (titles) the defendant occupied which was part of the status quo to be maintained and which parcels (titles) they were using before this order was issued. He is only making a blanket judgment and general use of the land.
Secondly the order on status quo did not mention any thing on stopping either of the parties from tilling, ploughing or planting of the land. Nothing would have been easier for the applicant to say for instance, L.R. 1161 was in our use when the order was issued and on 17. 3.13 the defendants or their agents threatened us from using it.
In the absence of such clear explanation, I find the application as not meeting the principles set out in the case of Giella Vs. Cassman Brown.
The applicant has also failed to show that he will suffer irreparable loss.
I would therefore echo the express orders of the Judge that in Bungoma HC
P & A 466 of 2009 that
“The status quo prevailing on the deceased's estate at the moment be maintained.” The application is thus dismissed with costs to the defendants.
RULING DELIVERED AND DATED this 8th day of October 2013.
A. OMOLLO
JUDGE.