[2021] KEELC 2101 (KLR)
The court found that the plaintiff had not demonstrated a prima facie case with a likelihood of success, given that the issues regarding ownership and possession of the suit land had already been determined in previous proceedings, including Kisumu CM (ELC) No. 166 of 2018 and Kisumu ELCC No. 131 of 2007, with...
Source-derived case information.
- Citation
- [2021] KEELC 2101 (KLR)
- Parties
- Plaintiff: Isaac Ouma Kumba; Defendant: Perez Awiti Ayamo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E004 of 2021
- Procedural Posture
- Originating Summons / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Adverse Possession, Limitation of Actions, Injunctive Relief, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Ouma Kumba
Plaintiff
Perez Awiti Ayamo
Defendant
Procedural Posture
Originating Summons / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff is entitled to land parcel Kisumu/Nayalenda “B”/1883 by adverse possession.
- 2 Whether the plaintiff is entitled to a temporary injunction restraining eviction pending hearing of the suit.
- 3 Whether the issues raised are res judicata due to prior litigation and decisions.
Ratio Decidendi
The court found that the plaintiff had not demonstrated a prima facie case with a likelihood of success, given that the issues regarding ownership and possession of the suit land had already been determined in previous proceedings, including Kisumu CM (ELC) No. 166 of 2018 and Kisumu ELCC No. 131 of 2007, with appeals dismissed. The application for a temporary injunction was, in substance, an attempt to stay execution of a valid court order, which is not permissible. The plaintiff's failure to raise the issue of limitation under the Limitation of Actions Act in the earlier proceedings was fatal to his current application. Consequently, the court dismissed the application with costs,...
Court Disposition
application dismissed with costs
Orders
- The application dated 13/2/2021 is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISUMU
ELC CASE NO. E004 OF 2021 (O.S)
ISAAC OUMA KUMBA........................................................................PLAINTIFF
-VERSUS-
PEREZ AWITI AYAMO.....................................................................DEFENDANT
RULING
Isaac Ouma Kumba hereinafter referred to as the Plaintiff has come to court vide an Originating Summon dated 12/2/2021 seeking a declaration that he is entitled to land Parcel Number Kisumu/Nayalenda “B”/1883 that he presently occupies measuring approximately 0. 26 Ha by reason of his adverse possession thereof for a period of 12 years. Moreover, that the respondent’s property interest in the said portion of land has been extinguished by the plaintiff’s adverse possession thereof. That the Defendant is holding the land in trust for the Plaintiff.
In the Supporting Affidavit, the plaintiff states that the suit parcel of land was fraudulently acquired by one Isaya Ooko Kumba and that none of the transferees have taken possession. The plaintiff states that he has nowhere to go. He caused a caution to be placed on the land register but the same was removed by court order.
The court in Kisumu CM ELC No. 166 of 2018 granted an order of eviction. He preferred Appeal Number Kisumu No. 9 of 2019 and the same was dismissed.
Simultaneously the plaintiff filed Notice of Motion dated 15/2/2021 seeking an order of temporary injunction restraining the defendant and his agents from evicting him from the suit parcel of land pending the hearing of the suit.
In the replying affidavit, the Respondent states that the plaintiff is abusing the process of the court due to the fact that the court in Kisumu ELCC No. 131 of 2007 the High Court made a decision on ownership of the property. The High Court ordered that the caution be removed. The court in CM (ELC) No. 160 of 2018 ordered that the plaintiff deserves possession. The applicant appealed in Kisumu ELC Appeal no. 9 of 2019 which was dismissed.
I have considered the notice of motion dated 13/2/2021 and do find that granting the same will amount to granting stay of execution of a court order issued by the Learned Magistrate in Kisumu CM (ELC) 166 OF 2018 and therefore i decline to grant the same. The applicant ought to have raised issues of limitation under section 7 of the Limitation of Actions Act Cap 22 Laws of Kenya in Kisumu CM (ELC) 166 of 2018.
The applicant has not demonstrated to me that he has a prima facie case with a likelihood of success in view of the various cases that have been determined by the court. The application is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 3RD DAY OF SEPTEMBER, 2021
ANTONY OMBWAYO
JUDGE
This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2019.
ANTONY OMBWAYO
JUDGE