|Civil Case 114 of 2010
|JANE NAMBWA (Suing on behalf of the estate of CHARLES NAMBWA SUNGUTI) v DINA SUNGUTI, BENSON KAKAI SUNGUTI & DICKSON N. SUNGUTI
|14 Apr 2011
|High Court at Kakamega
|JANE NAMBWA (Suing on behalf of the estate of CHARLES NAMBWA SUNGUTI) v DINA SUNGUTI & 2 others  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
CIVIL CASE NO. 114 OF 2010
“1. That the status quo be maintained in respect of the Applicants occupation of land parcel number Kakamega/Bushu/736 pending hearing of this application inter-partes or until further orders of the court.
“(a) The Applicant has been and is still in occupation of the suit land since June 1972 upto date.
(c) The Respondents have threatened to evict the Applicant from the suit land.
(e) If the Applicant is evicted from the suit land, she stands to suffer irreparable damage which cannot be adequately compensated by way of damage.
(f) The orders sought seek preservation of the subject matter of the suit pending hearing and determination of the same.
4. I should state here that in the Originating Summons dated 29.7.2010, she is claiming five (5) acres out of land parcel number 736 aforesaid and her claim is predicated on adverse possession.
6. In his submissions, Mr. Mukavale has raised the issue that the Applicant is not the legal representative to the estate of the late Charles Nambwa Sunguti and so his capacity to sue is challenged. Further, that the Respondents obtained the suit land vide a Succession Cause and the transmission to them was through lawful means. Lastly, that in the circumstances, an injunction cannot be issued to the Applicant as the conditions for grant thereof have not been met.
8. Firstly, I have seen no evidence to dispute the fact that the Applicant is in actual occupation of the suit land. Any eviction at this stage will obviously cause damage to the Applicant before her claim for adverse possession can be properly determined, on the merits.
10. Lastly, in Ooko vs Barclays Bank of Kenya Ltd.  2 KLR 394, Ringera, J. (as he then was), restated the Oft-quoted principles for grant of an interlocutory injunction and I need not repeat them, save to say that in the instant case, the Applicant has satisfied the condition of a prima facie case with a probability of success and having also seen that on a balance of probability, her case is not frivolous, it is best to grant prayers 3 and 4 of the Application dated 29.7.2010 and order each party to bear its own costs.
Delivered, Dated and Signed at Kakamega this 14th day of April, 2011.
J U D G E