PAMELA MIDEVA GWANYEMBA AND HILLARY MATANYE EZAVITA AND 3 Others VS ELAM EZAVITA MATANYE AND GIDEON LUMADEDE MUGUHELI

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT VIHIGA

ELC NO.   3 OF 2024

PAMELA MIDEVA GWANYEMBA……………………..…….1^ST PLAINTIFF

HILLARY MATANYE EZAVITA………………………..…….2^ND PLAINTIFF

FAITH MINAYO EZVITA………………………………………3^RD PLAINTIFF

LAVINE KADOTA AZAVITA…………………………….……4^TH PLAINTIFF

MACKMILLAN NYABUTO EZAVITA………………………..5^TH PLAINTIFF

VERSUS

ELAM EZAVITA MATANYIE……………………………….1^ST DEFENDANT

GIDEON LUMADEDE MUGUHELI………………………….2^ND DEFENDANT

RULING

1. This ruling is in respect of the Notice of Motion application dated 19^th March 2023 brought by the plaintiffs pursuant to the provisions of Order 40 Rules 1 and 2 of the Civil Procedure Rules, Section 3 & 3A Civil Procedure Act and Article 159 of the Constitution of Kenya 2010.  The application seeks for an order of injunction restraining the defendants whether acting by themselves, their agents, workers, proxies or any other person purporting to act on their instructions from cutting down trees, destroying property or interfering with the plaintiffs’/applicants’ occupation or use of land parcel number NORTH MARAGOLI/KISATIRU/2215, that the officer in charge Chavakali police post be directed to ensure compliance and that costs of the application be borne by the Respondents.
2. The application was supported by the averments in the Supporting Affidavit sworn by the 1^st plaintiff on 19^th March 2024 and the annexures thereto.
3. The 2^nd Respondent opposed the application vide the contents of the Replying Affidavit sworn on 3^rd April, 2024 and the annexure thereto.
4. The application is essentially an application for temporary injunction pending hearing and determination of the suit. Under 40. Rule 1 Civil Procedure Rules under which the application is brought.

“Where in any suit it is proved by Affidavit or otherwise: -

1. that any property in dispute in a suit is in danger of being, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree,
2. that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in execution of any decree that may be passed against the Defendant,

the court may grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the court thinks fit until the disposal of the suit or until further orders”

1. The Plaintiffs’/Applicants’ case herein is that the 1^st plaintiff is the wife of the 1^st Defendant while the 2^nd, 3^rd and 4^th plaintiffs are their children. That the 1^st Defendant secretly sold the family land No. NORTH MARAGOLI/KISATIRU/2215 to the 2^nd Defendant without the knowledge of the plaintiffs/applicants.  That the 1^st Defendant was holding the land in trust for the plaintiffs.  That the 2^nd Defendant invaded the land on 16^th March 2024 and started cutting down nature eucalyptus trees planted by the plaintiffs and threatened to forcefully evict the plaintiffs/applicants from the land without any eviction notice.  That the plaintiffs stand to suffer irreparable loss unless the order sought is granted.  That the 1^st Defendant has nothing to lose as he resides elsewhere in Nandi County with another wife.
2. The 1^st Defendant filed no reply to the application.
3. The application was presented orally on 8/4/2024. It was submitted on behalf of the plaintiffs that the 1^st plaintiff/applicant never gave spousal consent for the sale of the land to the 2^nd Defendant. That the suit land is ancestral land.  That no notice of eviction was served. That the applicants have their homes on the suit land.  That the plaintiffs were not privy to the land sale agreement.  That there is a prima facie case with a probability of success.  That as the plaintiffs have pleaded fraud, the title held by the 2^nd Defendant is subject to be challenged.
4. The 1^st Respondent submitted that he did not sell the suit land and that he has not bought any land anywhere.
5. It was submitted on behalf of the 2^nd Respondent that he is a bona fide purchaser for value having bought the land through a land sale agreement dated 13/8/2021 at a cost of kshs 1, 100,000/= That with the proceeds of the sale the 1^st Respondent established his home in Nandi County where he resides.  That the 2^nd Respondent followed due process to obtain title.  That there is no evidence that the 2^nd Defendant’s title was subject to investigations.  That the 2^nd Respondent who is a retired teacher has invested heavily on the suit land and is greatly prejudiced.  That there is no indication that the plaintiffs are willing to refund the purchase price.  That the trees being felled were paid for.
6. The grounds for grant of interlocutory injunction were set out in the case of  Giella vs Cassman Brown Co. Ltd (1973) 358 that the Applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience. A prima facie case was defined by the Court of Appeal in Mrao Ltd vs First American Bank 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. On the facts of this case I find that a prima facie case with a probability of success has been demonstrated.  The applicants have their homes on the suit land.  It is important that the status quo of the suit land be maintained pending hearing of the suit.  If the plaintiffs are evicted from the land at this stage of the suit they will suffer irreparable injury.
2. For the foregoing reasons, I find that the application has merit. The application is allowed as follows
3. Pending hearing and determination of the suit, an order of injunction is hereby granted restraining the defendants whether acting by themselves, their agents, workers, proxies or any other person purporting to act on their instructions from cutting down trees, destroying property or interfering with the plaintiffs’/applicants’ occupation or use of land parcel number NORTH MARAGOLI/KISATIRU/2215.
4. Costs to the 2^nd Respondent.

Orders accordingly.

Ruling, dated and signed at Vihiga and read virtually this 9^th day of May 2024 through Microsoft Teams online application.

E. ASATI,

JUDGE.

In the presence of:

Ajevi- Court Assistant.

           Malanda h/b for Chitwah for the Applicants

  Respondents present in person.