REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA LAND AND ENVIRONMENT CASE NO. 127 of 2013 JEPHTHER NALIANYA MUNYIKANA......…….....................… PLAINTIFF VERSUS BENSON WANYAMA NALWA.........…....................…1ST DEFENDANT THE LAND REGISTRAR...........................................2ND DEFENDANT THE ATTORNEY GENERAL.....................................3RD DEFENDANT RULING By Notice of Motion dated 6th May 2013 brought under Order 51 Rule 1 & Order 40 Rule 1 of the Civil Procedure Rules the Applicant seeks orders; 4. THAT pending the hearing and determination of this suit there be an order for temporary injunction against the 1st Defendant/Respondent restraining him by himself or his agents and or servants and or any other person acting under his authority or direction from transferring,wasting, damaging, alienating, trespassing, selling, utilizing,developing, removing or otherwise disposing off those portions namely Ndivisi/Makuselwa/2232,Ndivisi/Makuselwa/2233, Ndivisi/Makuselwa/2234 and Ndivisi/Makuselwa/2235. The application is supported by the grounds on the face of it and the affidavit sworn by the Applicant. The 1st Respondent opposed the application and filed a replying affidavit. The 2nd & 3rd Respondents have not filed any documents in opposition. When the application came up for hearing, the Applicant and 1st Respondent chose to rely on the pleadings filed and left it to the court to make a finding. I have perused the pleadings. Briefly this is what is brought out, the Applicant depones that he did not sell 8 acres to the 1st Defendant. However by a subdivision undertaken by the 1st Defendant, he acquired 8 acres of the suit land. The origin of this case is execution of an award given by Webuye Land Disputes Tribunal which awarded the 1st Respondent land measuring 0.41ha. In his replying affidavit, the 1st Respondent annexed a sale agreement showing the applicant sold a portion of the land L.R. Ndivisi/Makuselwa/377 measuring 0.41 ha (1.08 acres). The copies of official searches annexed to the supporting affidavit reveals the resultant nos from the subdivision Ndivisi/Makuselwa/2235 measuring 1.0 ha, L.R. Nos. 2232 measuring 1.4 ha and L.R. No. 2234 measuring 0.6 ha, are all registered in the name of BENSON WANYAMA NALWA – 1st Defendant. This is in contradiction to 1.08 acres of land he purchased and awarded to him by the tribunal. On the basis of the annexed documents, I find the Applicant has established a prima facie case with chances of success. Consequently i find the application has merit and allow prayer 4 thereof. The costs of the application is awarded to the Applicant. RULING DATED, SIGNED AND DELIVERED in open court this 5th day of A. OMOLLO JUDGE.a November, 2013.
Original judgment
Jephther Nalianya Munyikana v Benson Wanyama Nalwa & 2 others
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