[2013] KEHC 1009 (KLR)
The court found that the Plaintiff was not in possession of the suit land at the time the suit was filed, having lost possession in 2008 during discussions of monetary compensation. Granting a temporary injunction to reinstate the Plaintiff would be unfair to the Defendants, who were in possession. The appropriate...
Source-derived case information.
- Citation
- [2013] KEHC 1009 (KLR)
- Parties
- Plaintiff: Brian Nungo Akwir; Defendant: Jannes Juma Oloo; Defendant: Peter Owino Ahenda; Defendant: George Agola Owiyo; Defendant: William Owoko Juma
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 25 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for temporary injunction dismissed with costs; status quo to be maintained.
- Legal Topics
- Temporary Injunctions, Possession of Land, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Nungo Akwir
Plaintiff
Jannes Juma Oloo
Defendant
Peter Owino Ahenda
Defendant
George Agola Owiyo
Defendant
William Owoko Juma
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff is entitled to a temporary injunction restraining the Defendants from trespassing onto the suit land.
- 2 Whether the Plaintiff was in possession of the suit land at the time of filing the suit.
- 3 Whether the status quo should be maintained pending the hearing and determination of the suit.
Ratio Decidendi
The court found that the Plaintiff was not in possession of the suit land at the time the suit was filed, having lost possession in 2008 during discussions of monetary compensation. Granting a temporary injunction to reinstate the Plaintiff would be unfair to the Defendants, who were in possession. The appropriate remedy was to maintain the status quo to prevent changes in ownership or further prejudice until the substantive suit is heard and determined. Consequently, the Plaintiff's application for a temporary injunction was dismissed with costs, and the court ordered that the existing status quo be maintained pending the final determination of the case.
Court Disposition
Plaintiff's application for temporary injunction dismissed with costs; status quo to be maintained.
Orders
- The Plaintiff's application dated 22nd April, 2013 is dismissed with costs.
- The parties are directed to maintain the existing status quo pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUSIA.
ELC. NO. 25 OF 2013.
BIRIAN NUNGO AKWIR ………......…………………. PLAINTIFF
VERSUS
JANNES JUMA OLOO ]
PETER OWINO AHENDA ]…...…………………….. DEFENDANTS.
GEORGE AGOLA OWIYO ]
WILLIAM OWOKO JUMA ]
R U L I N G.
The Plaintiff, BRIAN NUNGO AKWIR filed the Notice of Motion dated 24th April, 2013 against the Defendants for a temporary injunction to restrain the Defendants from trespassing onto his land. The application is supported by the Plaintiff’s affidavit sworn on 22nd April, 2013. The application is opposed by the Defendants through the replying affidavit sworn by the 3rd Defendant, George Ogola Owiyo, on 21st June, 2013.
M/S. J.V. Juma & co. Advocates and M. A. Ochanji – Opondo, advocates for the Plaintiff/Applicant and Defendants/Respondents, respectively filed their written submissions.
I have carefully considered the supporting and replying affidavits and submissions by counsel and find as follows;-
That by the time this suit was filed, the Plaintiff/Applicant was not in possession of the land, subject matter of this suit.
That the Plaintiff/Applicant appears to have lost possession of the land in question in the year 2008 when some proposal of a monetary compensation in lieu of land was being pursued.
That it would be unfair at this stage to reinstate the Plaintiff/Applicant on the suit land as he is not the party in possession. An order to maintain the status quo until the case is heard and determined is more appropriate.
For reasons set out above, the court finds no merit in the Plaintiff’/Applicant’s application dated 22nd April, 2013 and the same is dismissed with costs.
So as to ensure the ownership of the suit land do not change hand before the finalization of this suit, the court on its own motion directs that the parties do maintain the existing status quo pending hearing and determination of this suit.
S.M. KIBUNJA,
JUDGE.
DATED AND DELIVERED THIS 27TH DAY OF NOVEMBER, 2013. IN THE PRESENCE OF;
JUDGE.