MILDRED NAMWAYA WEKESA VS COUNTY CHIEF OFFICER WATER AND BUNGOMA COUNTY GOVERNMENT

1. The application before me is the Notice of Motion dated 13/02/2025 brought under Sections 1A,1B,3A & 63 (1) of the Civil Procedure Act, Order 40 Rule 1(a) & 2 of the Civil Procedure Rules, 2010 and Section 19 of the Environment and Land Act seeking the following orders;
2. Spent.
3. Spent.
4. That pending hearing and determination of this suit, orders be issued restraining the defendants from cutting down flora and fauna and from undertaking any construction/development in the suit portion of land previously part of East Bukusu/South Kanduyi/4717 but currently unregistered.
5. The costs of this application be in the suit.
6. The application is based on four (4) grounds which appear on the face of the application. It is further supported by the affidavit of the Plaintiff/Applicant sworn on 13/02/2025.
7. The Plaintiff/Applicant deposed that in the late 1970s’, her late father, Joseph Wamalwa Enock, who was the registered proprietor of land parcel East Bukusu/South Kanduyi/4717, verbally permitted a contractor namely Tara Singh Dogra, to occupy approximately 1.1 acres of the land for temporary quarters during a water supply project. In return, the contractor agreed to pay a monthly rent, employ family members, and ultimately surrender the quarters to the owner. That the above-mentioned land was sub-divided and the portion rented to the said contractor was inadvertently or deliberately not surveyed and therefore,  a new number was not allocated for it. However, instead of vacating, government staff from the Ministry of Water took possession of the premises without any formal agreement or compensation. Despite repeated verbal requests by the deceased and one of his sons namely  George Masibo, the said Ministry and the Count Government of Bungoma have refused to vacate and hand over vacant possession of the said land.
8. The plaintiffs contend that no legal interest was ever conferred upon the Ministry of Water or the County Government, and that their continued occupation of the suit land is unlawful. Efforts to engage the authorities through correspondence between 2019 and 2024 have been unfruitful, with the latest communication ignored. That on 05/02/2025, agents of the County Government trespassed onto the land and fell a significant family tree, allegedly in preparation for construction of an MCA’s office. The plaintiffs now seek urgent protection from the court, asserting that the Defendant/Respondents have no documentary title or legal basis for their actions and are infringing on their property rights through forceful and unlawful means.
9. Despite being served with the said application, the Defendant/Respondents did not file a response to the application.
10. When the application came up for directions, the court directed that the said application be canvassed by way of written submissions.
11. The Plaintiff/Applicant filed submissions dated 26/02/2025 where she majorly relied on the contents of her application and the supporting affidavit. It was submitted that the Defendants/Respondents have not presented any evidence to the effect that they acquired the portion in contention lawfully. It was argued that the estate of Joseph Wamalwa Enock, was apprehensive that its right to property was being violated and that more damage would be occasioned if the orders sought are not granted. Reliance was placed in the case of Gehlot & Another v African Banking Corporation Limited (Civil Suit 104 of 2018) [2022] KEHC 96 (KLR) (Commercial and Tax) (11 February 2022) (Ruling).

Analysis and determination.

1. Having considered the application and the written submissions, I find that the only issue for determination is whether the Applicant has met the threshold for the grant of an order of injunction.
2. The law that governs applications for injunction is premised under Order 40 Rule 1 of the Civil Procedure Rules 2010 while the principles applicable in an application for an injunction were laid down in the celebrated case of Giella Vs Cassman Brown & Co Ltd [1973] EA 358 where the court held that in order to qualify for an injunction;

ü First the applicant must show a prima facie case with a probability of success.

ü Secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages.

ü Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.

1. The first condition is whether the Plaintiff/Applicant has made a case for a prima facie case. A prima facie case was defined by the Court of Appeal in Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others (2003) eKLR as follows;

“a prima facie case in a civil application includes but is not confined to a genuine and arguable case”. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

1. The applicant in this case argues that the parcel of land in contention forms part of LR. No. East Bukusu/South Kanduyi/4717 which was wrongly subdivided to form parcel no. 5420,5421 and 5422. It is alleged that the survey of the approximate area was done leaving out the portion said to have been rented out as quarters for the contractors of a water company. He produced a mutation form showing that the initial approximate area before sub-division was 2.17ha and that after subdivision the resultant plots measured 1.52ha, 0.33ha and 0.1ha which cumulatively amounted to 1.95ha. This therefore leaves out an unaccounted area of 0.02ha. In my considered view, the applicant has a case that raises issues that require probing and as a result I am satisfied that the Applicant has established that he has a prima facie case with a probability of success.
2. As regards the issue whether the Applicant will suffer irreparable harm which cannot be adequately compensated by award of damages, the Applicant must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. The Plaintiff/Applicant herein argued that the Defendant/Respondents were cutting down trees and preparing for the construction of a permanent structure on the said land. The Plaintiff/Applicant has presented as evidence various letters to the concerned offices with regards to the matter in issues unsuccessfully. The Plaintiff/Appellant having demonstrated ownership which is a right capable of being protected under the law, I find that she has established that the estate is likely to suffer irreparable harm which cannot be adequately compensated by way of damages if the orders sought are not granted.
3. I also find that the balance of convenience tilts in favour of the Plaintiff/Applicant as he is the registered owner of the subject land.
4. The upshot of the foregoing is that the application dated 13/02/2025 is merited and I proceed to allow the same in the following terms:-
5. That pending hearing and determination of this suit, an injunction be and is hereby issued restraining the Defendant/ Respondents from cutting down flora and fauna and from undertaking any construction/development in the suit portion of land previously part of East Bukusu/South Kanduyi/4717.
6. The costs of this application shall be costs in the cause.

15.Orders accordingly.

DATED, SIGNED and DELIVERED at BUNGOMA this 24^th day of June, 2025.

……………………………..

HON.E.C CHERONO

ELC JUDGE

In the presence of;

1. Applicant/Advocate - Absent

2. Respondent/Advocate - Absent

3.Bett - C/A