Lonita Lihavi & another v Gunyama A Gunyama & 2 others [2013] KEHC 648 (KLR)

Citation: Lonita Lihavi & another v Gunyama A Gunyama & 2 others [2013] KEHC 648 (KLR)
Media Neutral Citation: [2013] KEHC 648 (KLR)
Court: High Court
Court station: High Court at Kakamega
Case number: Civil Case 8 of 2010
Attorneys
Alternative citations: Lonita Lihavi & another v Gunyama A Gunyama & 2 others [2013] eKLR
Judgment date: 4 December 2013
Language: English
Type: Judgment
Original source file: Download DOCX (25.0 KB)

Case action: Ruling
Court division: Civil
Filing county: Kakamega

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REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL CASE NO. 8 OF 2010 (OS)

LONITA LIHAVI …………………………………………….. 1^ST PLAINTIFF

MICHAEL MUSAMBAYI …………………………………… 2^ND PLAINTIFF

V E R S U S

GUNYAMA A. GUNYAMA ……………………………….. 1^ST DEFENDANT

RESPA LISHINDU MACHINJI ………………………… 2^ND DEFENDANT

JACKTONE NYIKULI ……………………………………. 3^RD DEFENDANT

R U L I N G

In the application dated 18.10.2010 the applicants are seeking an order of injunction against the defendants in relation to plot number ISUKHA/SHIRERE/2725. The application is supported by the affidavit of the 1^st applicant. The respondents filed a replying affidavit sworn by the 1^st respondent on the 1.10.2012. The applicants informed the court that they seek to restrain the defendants from utilizing the suit land as the land belongs to them. Mr. Akwala, counsel for the respondents opposed the application and relied on the replying affidavit. Counsel submitted that the 2^nd plaintiff attempted to enter the suit land in the year 2008 but was restrained by a court order in Kakamega HCCC No. 84 of 2008. The applicants claim is for adverse possession and yet the land is registered in the names of the defendants.

Having gone through the application together with the supporting affidavit, it is established that the defendants are the current registered proprietors of the suit land. The applicants contend that the defendants obtained registration by means of fraud. It is also established that the defendants are the ones in occupation. The applicants have to first prove that the registration was fraudulent before they can restrain the defendants from utilizing the suit land. I am seeing any irreparable damage that would be suffered by the applicants should the orders not be granted. The defendants are the registered owners of the suit land and it would be unfair to injunct them at this moment. I do find that the application dated 18.10.2010 lacks merit and the same is dismissed with no orders as to costs.

Delivered, dated and signed at Kakamega this 4^th day of December 2013

SAID J. CHITEMBWE

J U D G E

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