[2019] KEELC 2639 (KLR)
The court found that the interim orders of 12.3.2019 were properly issued after being satisfied that service had been effected on the defendant. There was no sufficient ground to set aside, review, or discharge the orders. However, the court acknowledged that the orders appeared to have been misused by the plaintiff...
Source-derived case information.
- Citation
- [2019] KEELC 2639 (KLR)
- Parties
- Plaintiff: Annah Kimitei (Suing as the Legal Representative of the Estate of the late Nyongoio Kimitei); Defendant: James Kiprop Mitei; Defendant: Justine Kiplimo Rotich; Defendant: Leah Chebet Kimutai; Defendant: Roncers Karmait Murkomen; Defendant: Geoffrey Kiprotich Komen; Defendant: Daniel Murkomen
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 36 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside, Review, or Discharge Interim Orders
- Outcome
- Application to set aside, review, or discharge interim orders dismissed; additional restraining order granted against plaintiff.
- Judges
- A Ombwayo
- Legal Topics
- Interlocutory Injunctions, Service of Process, Eviction Disputes, Succession and Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Annah Kimitei (Suing as the Legal Representative of the Estate of the late Nyongoio Kimitei)
Plaintiff
James Kiprop Mitei
Defendant
Justine Kiplimo Rotich
Defendant
Leah Chebet Kimutai
Defendant
Roncers Karmait Murkomen
Defendant
Geoffrey Kiprotich Komen
Defendant
Daniel Murkomen
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside, Review, or Discharge Interim Orders
Legal Issues
- 1 Whether the interim orders issued on 12.3.2019 should be set aside, reviewed, or discharged for lack of service or concealment.
- 2 Whether the plaintiff misused the court orders to evict the 1st defendant and destroy his property.
- 3 Whether the plaintiff should be restrained from interfering with the 1st defendant's use of the suit property pending determination of the suit.
Ratio Decidendi
The court found that the interim orders of 12.3.2019 were properly issued after being satisfied that service had been effected on the defendant. There was no sufficient ground to set aside, review, or discharge the orders. However, the court acknowledged that the orders appeared to have been misused by the plaintiff to destroy the 1st defendant's property. To prevent further misuse and to preserve the status quo, the court ordered that the plaintiff be restrained from evicting or interfering with the 1st defendant's use of the suit property until the hearing and determination of the main suit. The court also directed the police to continue investigating the alleged destruction of...
Court Disposition
Application to set aside, review, or discharge interim orders dismissed; additional restraining order granted against plaintiff.
Orders
- The application to set aside, review, or discharge the orders of 12.3.2019 is dismissed.
- The plaintiff is restrained from evicting the 1st defendant or interfering with his utilization of the suit parcel until hearing and determination of the suit.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 36 OF 2019
ANNAH KIMITEI (Suing as the Legal Representative of the
Estate of the late NYONGOIO KIMITEI..............PLAINTIFF
VERSUS
JAMES KIPROP MITEI..............................1ST DEFENDANT
JUSTINE KIPLIMO ROTICH...................2ND DEFENDANT
LEAH CHEBET KIMUTAI........................3RD DEFENDANT
RONCERS KARMAIT MURKOMEN......4TH DEFENDANT
JUSTINE KIPLIMO ROTICH...................5TH DEFENDANT
GEOFFREY KIPROTICH KOMEN.........6TH DEFENDANT
DANIEL MURKOMEN...............................7TH DEFENDANT
RULING
The application dated 26. 6.2019 is made by the 1st defendant who seeks the execution of the orders made on 12. 3.2019 be discharged, reviewed or be set aside for being obtained by concealment as the 1st defendant was not served. He prays that subdivision, encroachment, trespass and destruction by the plaintiff and her agents be stopped. The gist of the grounds and supporting affidavit of James Kiprop Mitei is that the orders have been misinterpreted and misused to evict the 1st defendant. Moreover, the orders have been used to destroy the 1st defendant’s crop of wheat and to block access to his house and shamba. The parties however, are related being wife and son of the deceased Nyangio Kimitei to whom the estate of the suit property belongs. According to the 1st defendant, the property will be dealt with by the court dealing with the succession cause.
Annah Kimitei states in the replying affidavit that the court issued the orders after being satisfied that the application was served. The orders are necessary to pre-empt the 1st defendant from selling the suit property. The plaintiff denies having destroyed the 1st defendant’s crop and having attempted to evict the 1st defendant.
I have considered the application, supporting affidavit and the replying affidavit and do find that the orders of the court made on 12. 3.2019 were given after the court was satisfied that the defendant had been served. There are no grounds for setting them aside. However, the orders appear to have been misused to destroy the property of the 1st defendant.
In that regard, I do order in addition that the plaintiffs be restrained from evicting the 1st defendant or interfering with his utilization of the suit parcel until hearing and determination of the suit.
The police should continue with investigating the destruction of the wheat and the fence surrounding the parcel of land.. No order as to costs.
Dated and delivered at Eldoret this 3rd day of July, 2019.
A. OMBWAYO
JUDGE