[2024] KEELC 6297 (KLR)
The court found that the plaintiffs had demonstrated sufficient grounds for the grant of an interim preservation order over the suit land, especially as the defendants, though duly served, failed to respond or contest the application. The court exercised its statutory mandate under section 13(7)(a) of the...
Source-derived case information.
- Citation
- [2024] KEELC 6297 (KLR)
- Parties
- Plaintiff: Francis Nyaihembe Gati; Plaintiff: John Chacha Mogaya; Plaintiff: Anes Alois Marwa; Defendant: Francis Mikwabe Mwita; Defendant: Prician Bokobora Mwita; Defendant: Mark Mwita Maroa; Defendant: Kleofas Marwa Mwita; Defendant: Morwani Joseph Okindo; Defendant: Peter Matiko Rimo; Defendant: Alfred Ogachi Kenyanya; Defendant: Land Registrar Kuria
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E005 of 2023
- Procedural Posture
- Environment and Land Case / Interlocutory Application for Interim Preservation Order
- Outcome
- Application allowed. Status quo order granted.
- Judges
- GMA Ongondo
- Legal Topics
- Interim Injunctions, Status Quo Orders, Trusts in Land, Adverse Possession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Nyaihembe Gati
Plaintiff
John Chacha Mogaya
Plaintiff
Anes Alois Marwa
Plaintiff
Francis Mikwabe Mwita
Defendant
Prician Bokobora Mwita
Defendant
Mark Mwita Maroa
Defendant
Kleofas Marwa Mwita
Defendant
Morwani Joseph Okindo
Defendant
Peter Matiko Rimo
Defendant
Alfred Ogachi Kenyanya
Defendant
Land Registrar Kuria
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application for Interim Preservation Order
Legal Issues
- 1 Whether the plaintiffs are entitled to an interim preservation order (status quo) over the suit land pending determination of the suit.
- 2 Whether the court has jurisdiction to grant interim preservation orders under section 13(7)(a) of the Environment and Land Court Act.
Ratio Decidendi
The court found that the plaintiffs had demonstrated sufficient grounds for the grant of an interim preservation order over the suit land, especially as the defendants, though duly served, failed to respond or contest the application. The court exercised its statutory mandate under section 13(7)(a) of the Environment and Land Court Act to preserve the subject matter of the dispute by maintaining the status quo. The order was necessary to prevent any alienation or dealing with the land that could prejudice the rights of the parties pending the final determination of the suit.
Court Disposition
Application allowed. Status quo order granted.
Orders
- Status quo to be maintained over the suit land pending the outcome of the suit.
- Parties are restrained from selling, leasing, charging, transferring, or subdividing the suit land during the pendency of the suit.
Full Case Text
Judgment text and source record
41 paragraphs
Gati & 2 others v Mwita & 7 others (Environment & Land Case E005 of 2023) [2024] KEELC 6297 (KLR) (24 September 2024) (Ruling)
Neutral citation: [2024] KEELC 6297 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment & Land Case E005 of 2023
GMA Ongondo, J
September 24, 2024
Between
Francis Nyaihembe Gati
1st Plaintiff
John Chacha Mogaya
2nd Plaintiff
Anes Alois Marwa
3rd Plaintiff
and
Francis Mikwabe Mwita
1st Defendant
Prician Bokobora Mwita
2nd Defendant
Mark Mwita Maroa
3rd Defendant
Kleofas Marwa Mwita
4th Defendant
Morwani Joseph Okindo
5th Defendant
Peter Matiko Rimo
6th Defendant
Alfred Ogachi Kenyanya
7th Defendant
Land Registrar Kuria
8th Defendant
Ruling
1. The instant ruling is in respect of an application by way of a Notice of motion dated 9th July 2024 by the three plaintiffs/applicants through M/S Edward Kisia and Associates Advocates for interim preservation order over the suit land Reference No. Bugumbe/Isebania/344 pending the outcome of this suit.
2. Mr Kisia learned counsel for the applicant informed the court that the respondents/defendants were duly served as revealed in the affidavit of service sworn on 22nd December 2023 and 22nd February 2024. He has implored the court to grant prayer No. 3 on the face of the application.
3. Clearly, there is no response to the application herein. The respondents were made aware of the existence of the application and the suit but opted not to respond to the same; see Ogada-vs-Mollin 2009) KLR 620.
4. It is noteworthy that the applicants commenced this suit by way of a plaint (Fast Track) dated 3rd November 2023 seeking the orders infra;-i.A declaration that Johana Mwita (deceased) held the suit land measuring approximately 10. 40 HA in trust and for benefit of his four brothers who all deceased and dependants.ii.A declaration that the Plaintiffs right over the suit land and resultant subdivisions are adverse to the rights of the 1st to 7th defendants all-inclusive over the same.
5. This court has the mandate to grant interim preservation orders as provided for under section 13 (7) (a) of the Environment and Land Court Act 2015 (2011).
6. In the circumstances, the applicants are deserving of an order of status quo over the suit land worthwhile.
7. Thus, the application is determined in terms of status quo to be maintained over the suit land pending the outcome of this suit. In particular, the parties shall not sell, lease, charge, transfer or subdivide the suit land during the pendency of the suit.
8. It is so ordered.
DATED AND DELIVERED AT MIGORI THIS 24th DAY OF SEPTEMBER 2024G. M. A. ONGONDOJUDGEIn Present of;-Mr E. Kisia learned counsel for the applicants/ PlaintiffsTom- Court Assistant