[2017] KEELC 579 (KLR)
The court found that the Plaintiff had established proprietorship of land parcel Uholo/Magoya/771 through official searches, while the Defendant's claim to beneficial interest in other parcels was unsubstantiated and did not relate directly to the disputed land. The surveyor's report confirmed that the Defendant's...
Source-derived case information.
- Citation
- [2017] KEELC 579 (KLR)
- Parties
- Plaintiff: Christopher Otieno Ochiel; Defendant: Andrew Onyango
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 269 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- Plaintiff's application for temporary injunction allowed; Defendant restrained from interfering with the suit property pending determination of the suit; costs awarded to Plaintiff.
- Legal Topics
- Injunctive Relief, Proprietorship Dispute, Land Trespass, Beneficial Interest, Boundary Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Otieno Ochiel
Plaintiff
Andrew Onyango
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Plaintiff has established a prima facie case with a probability of success for temporary injunction orders to issue at this stage.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the Plaintiff had established proprietorship of land parcel Uholo/Magoya/771 through official searches, while the Defendant's claim to beneficial interest in other parcels was unsubstantiated and did not relate directly to the disputed land. The surveyor's report confirmed that the Defendant's alleged parcel did not share a boundary with the Plaintiff's land, further weakening the Defendant's position. The Plaintiff thus demonstrated a prima facie case for injunctive relief, as there was credible evidence of ownership and ongoing interference by the Defendant. The court concluded that the Plaintiff was entitled to a temporary injunction restraining the Defendant from...
Court Disposition
Plaintiff's application for temporary injunction allowed; Defendant restrained from interfering with the suit property pending determination of the suit; costs awarded to Plaintiff.
Orders
- The Defendant by himself and or agents is hereby restrained from trespassing into, cultivating and constructing on, alienating or otherwise dealing with land parcel Uholo/Magoya/771 pending the hearing and determination of this suit.
- The Defendant to pay costs of the application.
Full Case Text
Judgment text and source record
50 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.269 OF 2016
CHRISTOPHER OTIENO OCHIEL.....................................PLAINTIFF
VERSUS
ANDREW ONYANGO......................................................DEFENDANT
RULING
1. Christopher Otieno Ochiel, the Plaintiff, prays for permanent injunction restraining Andrew Onyango, the Defendant, from trespassing into, entering into, selling, cultivating on, building structures onto or otherwise interfering or dealing with land parcel Uholo/Magoya/771 pending the hearing and determination of this suit. The notice of motion list eight grounds on its face and is supported by the affidavits sworn by the Plaintiff on the 10th October 2016 and 17th August 2017.
2. The application is opposed by the Defendant through his replying affidavit sworn on the 3rd January 2017.
3. The application came up for hearing on the 28th September 2017. The Defendant though served with a hearing notice and affidavit of service filed did not attend.
4. The following are the issues for the court’s determination;
a) Whether the Plaintiff has established a prima facie case with a probability of success for temporary injunction orders to issue at this stage.
b) Who pays the costs.
5. The court has after considering the grounds on the notice of motion and affidavit evidence concluded as follows;
a) That the Plaintiff has established proprietorship of land parcel Uholo/Magoya/771 through the certificates of official searches dated 26th September 2016 and 16th August 2017.
b) That the Defendant’s claims to have beneficial interests on Uholo/Magoya/450, which his late father exchanged with his late uncle’s namely Opiyo Asano and Achiel Ochieng, for parcel Uholo/Magoya/451 which parcel he stated he wanted to develop, its proprietorship is unclear. That while the certificate of official search for parcel Uholo/Magoya/451 dated 23rd January 2015, availed by the Defendant indicates the proprietors as Opiyo Osano and Ochiel Ochieng, the copy dated 16th August 2017 shows it was registered in the name of one Stephen Oluoch Opiyo on the 22nd December 2015.
c) That the surveyors report dated 126th August 2017 further indicates that parcels Uholo/Magoya/450 does not share a boundary with the Plaintiff’s parcel Uholo/Magoya/771 as in between is parcel Uholo/Magoya/451 and a road.
d) That in view of the foregoing, the Plaintiff has made a reasonable case for issuance of temporary injunction restraining the Defendant from interfering with land parcel Uholo/Magoya/771 pending the hearing and determination of this suit.
6. That having found merit in the notice of motion dated 10th October 2016, the same is allowed in the following terms;
a) That the Defendant by himself and or agents is hereby restrained from trespassing into, cultivating and constructing on, alienating or otherwise dealing with land parcel Uholo/Magoya/771 pending the hearing and determination of this suit.
b) The defendant to pay costs of the application.
Orders accordingly.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 6TH DAY OF DECEMBER 2017
In presence of;
Plaintiff Present
Defendant Present
Counsel Mr. Ragot for Ogonda for Plaintiff
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
6/12/2017
6/12/2017
S.M. Kibunja Judge
Court assistant Oyugi
Mr. Ragot for Ogonda for Plaintiff
The Defendant is present in person.
The matter is for ruling.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
6/12/2017
Defendant in English: I am ready for the ruling.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
6/12/2017
Order: Ruling dated and delivered in open court in presence of
Mr. Ragot for Ogonda for the Plaintiff and the Defendant in person.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
6/12/2017