[2018] KEHC 8303 (KLR)
The court held that the drastic remedies of imprisonment or demolition are not appropriate at the interlocutory stage, especially where the main dispute regarding land ownership and rights is yet to be determined. The court emphasized the importance of restraint and compliance with court orders by all parties,...
Source-derived case information.
- Citation
- [2018] KEHC 8303 (KLR)
- Parties
- Plaintiff: Bildad Simiyu Khakina; Plaintiff: Moses Khakina Wakhungu; Plaintiff: David Nyongesa Wambilianga; Defendant: Dr. Henry Kerre Wakhungu; Defendant: Dr. Phoebe Khasiala Wakhungu; Defendant: The District Land Registrar
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 172 of 2014
- Procedural Posture
- Notice of Motion / Interlocutory Ruling on Application for Enforcement of Court Orders and Restraint
- Outcome
- Application for contempt and demolition declined; suit to be fixed for hearing on a priority basis.
- Judges
- SN Mukunya
- Legal Topics
- Injunctive Relief, Contempt of Court, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bildad Simiyu Khakina
Plaintiff
Moses Khakina Wakhungu
Plaintiff
David Nyongesa Wambilianga
Plaintiff
Dr. Henry Kerre Wakhungu
Defendant
Dr. Phoebe Khasiala Wakhungu
Defendant
The District Land Registrar
Defendant
Procedural Posture
Notice of Motion / Interlocutory Ruling on Application for Enforcement of Court Orders and Restraint
Legal Issues
- 1 Whether the parties have disobeyed court orders regarding construction on the disputed land.
- 2 Whether imprisonment or demolition is an appropriate remedy at this interlocutory stage.
- 3 Whether the suit should be prioritized for hearing to resolve the underlying land dispute.
Ratio Decidendi
The court held that the drastic remedies of imprisonment or demolition are not appropriate at the interlocutory stage, especially where the main dispute regarding land ownership and rights is yet to be determined. The court emphasized the importance of restraint and compliance with court orders by all parties, warning that continued disregard could result in adverse consequences, including demolition of structures. The court directed that the suit be fixed for hearing on a priority basis to resolve the substantive issues between the parties, and cautioned all parties to obey existing court orders pending the final determination.
Court Disposition
Application for contempt and demolition declined; suit to be fixed for hearing on a priority basis.
Orders
- The suit shall be fixed for hearing on a priority basis to determine the issues between the parties.
- All parties are warned to obey court orders to avoid future consequences, including possible demolition of buildings constructed in violation of orders.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
ELC. CASE NO. 172 OF 2014
BILDAD SIMIYU KHAKINA.............................1ST PLAINTIFF
MOSES KHAKINA WAKHUNGU....................2ND PLAINTIFF
DAVID NYONGESA WAMBILIANGA............3RD PLAINTIFF
VERSUS
DR. HENRY KERRE WAKHUNGU..............1ST DEFENDANT
DR. PHOEBE KHASIALA WAKHUNGU.....2ND DEFENDANT
THE DISTRICT LAND REGISTRAR............3RD DEFENDANT
RULING.
[1]. I have perused, the notice of Motion filed by the plaintiff/applicant on 2nd October 2017 I have equally perused the Supporting Affidavit of the same. I have equally perused the Grounds of Opposition filed by the respondents on 9th November, 2017. I have also considered the Submission of Mr. Olonyi Learned Counsel for the applicant and the reply of Mr. J.S. Khakula learned Counsel for the respondents. I have also considered the fact that the parties herein initially purchased the suit properties together and have on several occasions attempted to settle this suit.
[2]. The issue at hand cannot be dealt comprehensively with by imprisoning parties to the suit at the moment. In the final analysis, demolition of the building built on the opposite parties land may eventually not be avoided should the parties continue to construct in utter disregard of court orders. The court will eventually decide whether damages will be payable. Restraint is advised when attempting to construct.
[3]. I therefore order that this suit should be fixed for hearing on a priority basis to determine the issue between the parties. Parties are well warned to obey court orders to avoid future consequences of having to demolish the buildings built on the piece of land that does not belong to those purporting to construct.
It is so ordered.
Judgment read in open Court in the presence of the advocates.
Dated at Bungoma this 22nd day of February, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Joy: Court Assistants
Mr. Olonyi for the Plaintiff Applicant
Mr. Amani for Mr. Khakula for Plaintiff - Respondent