[2010] KEHC 2778 (KLR)
The court found that the defendant denied any intention to evict the plaintiff and that the dispute primarily involved the son, John Otieno. However, to preserve the status quo and prevent potential harm to the plaintiff, the court granted an interlocutory injunction restraining the defendant from evicting the...
Source-derived case information.
- Citation
- [2010] KEHC 2778 (KLR)
- Parties
- Plaintiff: Fibi Nasio Okhako; Defendant: Jackson Okhako Maende
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 163 of 2009
- Procedural Posture
- Civil Case / Ruling on Interlocutory Injunction Application
- Outcome
- Interlocutory injunction granted; matter referred to arbitration; no order as to costs.
- Legal Topics
- Interlocutory Injunctions, Matrimonial Property Rights, Eviction Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fibi Nasio Okhako
Plaintiff
Jackson Okhako Maende
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the defendant should be restrained by injunction from evicting the plaintiff from the suit property pending determination of the suit.
- 2 Whether the dispute should be referred to arbitration by the District Officer.
Ratio Decidendi
The court found that the defendant denied any intention to evict the plaintiff and that the dispute primarily involved the son, John Otieno. However, to preserve the status quo and prevent potential harm to the plaintiff, the court granted an interlocutory injunction restraining the defendant from evicting the plaintiff from the suit property until further orders. Additionally, the court referred the matter to arbitration by the District Officer, Shiatsala Division, to investigate and report on the dispute within 60 days, after which the court would issue final orders. No order as to costs was made due to the familial relationship between the parties.
Court Disposition
Interlocutory injunction granted; matter referred to arbitration; no order as to costs.
Orders
- The defendant is restrained from evicting the plaintiff from the suit property until further orders of the court.
- The matter is referred to arbitration by the District Officer, Shiatsala Division, who shall file a report within 60 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 163 of 2009
FIBI NASIO OKHAKO ………………………………….. PLAINTIFF
V E R S U S
JACKSON OKHAKO MAENDE …….……………… DEFENDANT
R U L I N G
1. The Application dated 10. 11. 2009 seeks orders of injunction under Sections 3A and 63 (c)(e) of the Civil Procedure Act.The Applicant Fibi Nasio Okhako, wife of the Defendant, Jackson Okhako Maende prays therein that her husband aforesaid be restrained from “evicting, dislocating or displacing” her from land parcel Marama/Shibembe/533 or the resulting portions known as Marama/Shibembe/1427, 1428 and 1429 until the suit herein is heard and determined.
2. The response by the Defendant is contained in a Replying Affidavit sworn on 1. 12. 2009 and it is worth noting that at paragraph 3 thereof he depones as follows;
“That it is true the Plaintiff is my first wife and we are staying with her joyfully as husband and wife.”
3. At paragraph 5 he adds as follows:-
“That I and my two families are staying harmoniously and I have no intention (sic) of chasing away my first wife.”
4. It is also his response that it is actually his son with the Plaintiff one, John Otieno, who is inciting his mother “to be given a piece of land for him to inherit while” he has his own three acres given to him by the Defendant.That the dispute between him and his son was placed before the District Officer, Shiatsala Division who by letter dated 27. 10. 2009 ordered John Otieno to move to his land, Marama/Shibembe/496 and cease his interference with his father’s properties.
5. My appreciation of the matter is that the Defendant denies trying to evict his wife and that it is her son, Otieno that he had ordered to move out to his own land, a fact indeed confirmed by the letter dated 27. 10. 2009 from the District Officer, Shiatsala.However that issue is not the one that I am now dealing with.WhatI am dealing with is the claim by his wife that he wants to evict her from the land she currently occupies, as his first wife.He denies the claim and says that like a responsible husband he is at peace with her.
6. The above being the case, the only order that portends itself to me is that the Defendant shall be restrained from trying to evict the Plaintiff as prayed in prayer 2 of the Application dated 9. 11. 2009 until further orders of this suit.
7. Secondly I am referring this matter to arbitration by the District Officer Shiatsala Division.He shall file a report within 60 days and this court will thereafter give final orders in respect of the suit upon the report being filed.This order shall be extracted by the advocate for the Plaintiffs.
8. Because of the relationship between the parties, I shall make no orders as to costs.
Orders accordingly.
Delivered, dated and signed at Kakamega this 15th day of April, 2010
ISAACLENAOLA
J U D G E