[2021] KEELC 3561 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 59 OF 2020

IN THE MATTER OF NYALENDA/PANDPIERI/KISUMU PRISON

FARM/BLOCK NO. 10/102 NYALENDA MEASURIGN 64 ACRES

BEN O. OKWENGU...........................................................................1ST PLAINTIFF

OWIRA MESHARK OCHUODHO..................................................2ND PLAINTIFF

SYLAS OKWENGU...........................................................................3RD PLAINTIFF

MAURICE ODHIAMBO..................................................................4TH PLAINTIFF

AZAEL WIGWA.................................................................................5TH PLAINTIFF

LILIAN ATIENO AOKO...................................................................6TH PLAINTIFF

MICAHHERBERT MAGAJIA.........................................................7TH PLAINTIFF

ONDITI DAVID OMONDI................................................................8TH PLAINTIFF

(Suing for themselves and on behalf of the

entire Nyalenda A, B and Pandpieri Community)

VERSUS

KENYA PRISON SERVICE..........................................................1ST DEFENDANT

NATIONAL LAND COMMISSION............................................2ND DEFENDANT

LAND REGISTRAR- KISUMU..................................................3RD DEFENDANT

RULING

The Hon. Attorney General on behalf of the 1st Defendant has come to court seeking orders that this court allows the 1st Defendant to fence the suit property while taking into account the overriding interest of justice to the 1st Defendant. The application is based on grounds that the 1st Defendant/Applicant received funds from the exchequer in Nairobi to enable it fence the suit property. In the event that they are not utilized, the funds are to be remitted back to the exchequer for the purpose of accountability.

The funds meant to construct a perimeter fence on the suit property is about to be remitted back to the exchequer and accessing it would be futile since the financial year 2020/2021 is ending on 31st June 2021.

The 1st Defendant/Applicant had begun rehabilitating the parcel through planting of vegetables for inmates’ ration consumption. However, unabated invasion and trespass into the parcel, theft of farm produce and grazing cattle by the local villagers has led to destruction of farm produce and losses to the 1st Defendant/Applicant.

There is therefore the need for this Honourable Court to intervene and allow the 1st Defendant/Applicant to utilize the funds in fencing the property, taking into account the possible futility of attempting to access the funds once they are remitted back to the exchequer in Nairobi

The 1st Defendant/Applicant appreciates the consent of the parties on 26th October 2020 to maintain the status quo of the suit property and the just effort of this Honourable Court to ensure that both parties meet equitable end of justice. However, with the same status quo, the Plaintiff/Respondents will eminently experience an irreparable loss.

The Plaintiffs/Respondents shall suffer no loss if this Honourable Court allows this Application.

It is only desirable, fair and just that this Honourable Court grant the orders sought and allow this Application.

In the supporting affidavit, Edward K. Schei the Officer in charge Kisumu medium prison and an employee of the 1st defendant states that there is therefore the need for this Honourable Court to intervene and allow the 1st defendant/Applicant to utilize the funds in fencing the suit property, taking into account the possible futility of attempting to access the funds once they are remitted back to the exchequer in Nairobi.

That the 1st Defendant/Applicant appreciates the consent of the parties on 26th October 2020 to maintain the status quo of the suit property, and the just effort of this Honourable Court to ensure that both parties meet equitable end of justice. However, with the same status quo, the 1st Defendant/Applicant will eminently experience an irreparable loss.

That the Plaintiffs/Respondents shall suffer no loss if this Honourable court allows this Application. That it is only desirable, fair and just that this Honourable court grant the orders sought and allow this Application.

In the replying affidavit, the Respondent/Plaintiffs through Ben O. Okwengu states that the orders would amount to a constructive dismissal of the suit and declaration that the suit belongs to the defendants and that it would amount to supporting trespass.

I have considered the application and the nature of this case which is of utmost public interest. I do order that in the interest of justice the matter be reviewed for hearing on a daily basis from the 12th of July 2021. Pending the hearing and determination of the suit the 1st defendant to be allowed to fence the areas not inhabited by the plaintiffs and the said fencing should not amount to eviction of any party or demolition of any structure. The fencing should not affect the settlement areas which amounts to 26 acres but should be restricted to the 38 unsettled acres that is farms and grazing grounds. There be liberty to apply.

DATED AT KISUMU THIS 22ND DAY OF APRIL, 2021

ANTONY OMBWAYO

JUDGE

This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.

ANTONY OMBWAYO

JUDGE