[2019] KEELC 2683 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT AT KISUMU

ELC. NO. 3 OF 2014

GEORGE OTIENO GACHE..........................................................1ST PLAINTIFF

COVENANT OF PEACE CHURCH.............................................2ND PLAINTIFF

-VERSUS-

JUDITH AKINYI BONYO..........................................................1ST DEFENDANT

JOSHUA OMOLLO.....................................................................2ND DEFENDANT

RICHARD OTIENO.....................................................................3RD DEFENDANT

JAMES OTIENO..........................................................................4TH DEFENDANT

THE CHIEF LAND REGISTRAR..............................................5TH DEFENDANT

THE NATIONAL LAND COMMISSION..................................6TH DEFENDANT

RULING

1. The Defendants filed the notice of motion dated the 30th January, 2019 seeking for the “Defendants, their agents, servant or anyone claiming title and possession under the said Defendant be evicted from ... Land Reference Number 15155 – Kanyakwar/Kisumu and the possession thereof given to the Defendants/Applicants”; the plaintiff to demolish the structure erected on the said parcel or be made to pay the costs of demolishing and clearing the same; and that the police do provide assistance in enforcing the warrants of eviction. The application is based on the eleven (11) grounds or its face and is supported by the affidavit sworn by Judith Akinyi Bonyo, the 1st Defendant, on the 30th January, 2019. That it is the defendant case that through the court’s ruling of 12th November, 2015, the title and possession of the said land was granted on the defendants upon the plaintiff’s motion dated 13th January, 2014 being struck out and the exparte order given on the 13th January, 2014 being vacated. That the Plaintiffs had dispossessed the Defendants of the suit land on the strength of the exparte order of the 13th January, 2014 and have declined to vacate. That the plaintiffs filed an appeal on the ruling of 12th November, 2015 and that the Court of Appeal granted them a one year stay on the 5th October, 2017 which lapsed on the 5th October, 2018. That the plaintiffs are still in occupation of the land without any colour of right and hence the application for eviction and demolition.

2. The application is opposed by the Plaintiffs through the replying affidavit sworn by George Otieno Gache, the 1st Plaintiff, on the 4th March, 2019. The Plaintiffs case is that the National Land Commission had confirmed through their report dated the 14th March, 2018 that the 2nd Plaintiff is the beneficial owner of the suit land. That the 2nd Plaintiff was allocated the land through the letter of allotment of 15th May, 1991 and is therefore the proprietor of the land in law and equity. That they had filed Kisumu H. C.C.C No. 3 of 2014 to safeguard their interests over the land which the defendants were fraudulently attempting to acquire. That the defendants preliminary objection dated 18th March, 2015 was upheld and the suit struck out and therefore the court is functus officio in this matter. That contrary to the defendants’ claim, the court had only struck out the suit and vacated the interim injunction order, but did not make any orders on ownership and possession of the suit land. That the plaintiff filed an appeal to the Court of Appeal which is the only court now seized of the matter.

3. The application came up for hearing on the 7th March, 2017 when Mrs. Ashioya and Mr. Mwamu for the defendants and plaintiffs respectively made their oral submissions for and against the motion.

4. The following are the issues for court’s determination:-

a. Whether the court ruling of 12th November, 2015 determined the ownership and possession of the suit land in favour of the defendants.

b. Whether the prayers of eviction and demolition should issue as prayed.

c. Who pays the costs.

5. The court has carefully considered the grounds on the motion, affidavit evidence, the learned counsel’s submissions, the record and come to the following conclusions:

a) That the Plaintiffs had sued the Defendants and two others through the plaint dated 13th July, 2014 seeking for declaration that the plaintiff is the legal registered owner of plot No. 15155, Kisumu; rectification of the register; permanent injunction against 1st to 4th defendants; costs and interests. The defendants’ preliminary objection through the notice dated 18th March, 2015 to the whole suit was heard and upheld through the ruling of the 12th November, 2015 which effectively stuck out the plaintiffs’ suit with costs, and vacated the exparte order of 13th January, 2014 that had been extended severally. That from the plain reading of the ruling of the 12th November, 2015, the court had not been called to make a determination on who between the parties is the legal owner of the land or is entitled to its possession. That it is therefore erroneous for the defendants to claim that the court granted them title to, and possession of L.R. No. 15155-Kanyakwar/Kisumu. That once the plaintiff’s suit was struck out and the exparte order vacated, the parties legal status to the suit land remained as it was before the filing of the suit and the issuing of the exparte injunction order.

b) That the court agrees with the plaintiffs’ position that upon issuing the order of 12th November, 2015, the court became functus officio in the matter until such a time the Court of Appeal that is now seized of the proceedings through the appeal filed by the plaintiff, directs otherwise.

That the Court of Appeal ruling of 5th October, 2017 restrained the Respondents, who are the Defendants herein, “from parting with possession of the suit property, or developing the suit property or in any way changing the character of the suit property pending the hearing of the appeal.” That court further directed that the order’s life be twelve (12) months unless otherwise extended. That though the twelve (12) months have lapsed, the plaintiff’s explanation at paragraphs 14 to 17 of their replying affidavit on why they have not moved the court for extension of the order appear reasonable.

c) That in view of the findings in (a) and (b) above, the only matters the court can continue to deal with is the taxation of the bill of costs and execution thereof, until and unless the Court of Appeal directs otherwise.

6. That flowing from the foregoing the court finds no merit in the defendants motion dated 30th January, 2019 and the same is dismissed with costs.

Orders accordingly.

S. M. KIBUNJA

ENVIRONMENT & LAND - JUDGE

DATED AND DELIVERED THIS 3RD DAY OF JULY, 2019.

In presence of;

Plaintiffs Absent

Defendants Absent

Counsel Mr. Sala for Mwamu for Plaintiffs

M/s Ashoya for the Defendants

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE