[2017] KEHC 4485 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 16 OF 2017

WAKIFU MUCHONJE..........................................................PLAINTIFF/APPLICANT

VERSUS

ALEXANDER FUKUWO.......................................1ST DEFENDANT/RESPONDENT

CHAIRMAN LAND COMMISSION......................2ND DEFENDANT/RESPONDENT

RULING

This application is dated 16TH January 2017 and is brought under Section 3A of the Civil Procedure Act and order 40 of the Civil Procedure Rules seeking the following orders;

1. Service of this application be dispensed with in the first instance.

2. Temporary orders be issued restraining the 2nd defendant/respondent from making any payment to the 1st defendant/respondent pending the interpartes hearing and disposal of this application.

3. An injunction do issue restraining the 2nd defendant from making any payments to the 1st defendant/respondent with respect to compensation for plot number North Kabras/Kivaywa/675 until the suit is heard and determined.

4. Costs of this application be provided for.

The application is based on the affidavit of the plaintiff/applicant and the grounds on the face of the application. The plaintiff/applicant submitted that, there is an agreement between the plaintiff/applicant and the 2nd defendant/respondent authorizing the applicant to develop Plot No. North Kabras/Kivaywa/675 and the 2nd defendant/respondent intend to compulsorily acquire the land for public use and compensate the owners. That the 2nd defendant/respondent should deduct from total payments due to the 1st defendant/respondent and remit to the applicant herein the amount with respect to developments. The compensation is made up of the value for the plot and the development. That through the chief of Chevaywa location, the applicant invited the 1st defendant/respondent to resolve the dispute but the latter has ignored. That it is in the interest of justice that payments for the 1st defendant/respondent be withheld until the disputed is sorted out. That if the 2nd defendant/respondent is not restrained from making paying to the 1st defendant/respondent, the plaintiff/applicant will suffer irreversible damage. The defendant/respondents were served and failed to attend court or file any grounds in opposition.

This court has considered the applicant’s submissions and the supporting affidavit therein. The application being one that seeks injunctions, has to be considered within the principles set out in the case of GIELLA VS CASSMAN BROWN & CO. LTD 1973 E.A 358 and which are:-

The applicant must show a prima facie case with a probability of success at the trial

The applicant must show that unless the order is granted, he will suffer loss which cannot be adequately compensated in damages and,

If in doubt, the Court will decide the application on a balance of convenience.

It must also be added that an interlocutory injunction is an equitable relief and the Court may decline to grant it if it can be shown that the applicant’s conduct pertinent to the subject matter of the suit does not meet the approval of a Court of equity.

The plaintiff/applicant’s submissions are that, there is an agreement between the plaintiff/applicant and the 2nd defendant/respondent authorizing the applicant to develop Plot No. North Kabras/Kivaywa/675 and the 2nd defendant/respondent should deduct from total payments due to the 1st defendant/respondent and remit to the applicant herein the amount with respect to developments. The compensation is made up of the value for the plot and the development. The plaintiff /applicant has annexed an official search WM1 to show that Plot No. North Kabras/Kivaywa/675 belongs to the 1st defendant/respondent and WM2 of an alleged agreement with the 1st defendant/respondent saying he is authorized to be responsible for the said plot. The agreement is dated 15th June 1992. Reading the said agreement it is not clear what “authorized to be responsible” means. The duration of this agreement is not indicated. I find that the plaintiff/applicant has failed to show a prima facie case with a probability of success at the trial. The plaintiff/applicant has also failed to show that unless the order is granted, he will suffer loss which cannot be adequately compensated in damages. For these reasons I find this application is not merited and I dismiss it with costs.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 18TH DAY OF JULY 2017.

N.A. MATHEKA

JUDGE