[2017] KEELC 803 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.117 OF 2016

JAMES ONANDA OGONDA...................................PLAINTIFF

VERSUS

JACKTON ABAJA AWUONDA..........................DEFENDANT

RULING

1. This ruling relates to the notice of motion dated 30th May 2016 in which James Onanda Ogonda, the Plaintiff, seeks to have Jackton Abaja Awuonda, the Defendant, restrained from dealing with, alienating or mortgaging South Gem/Dienya/620 pending the hearing and determination of this suit. The application is based on twelve grounds marked (a) to (L) and is supported by the affidavits of the Plaintiff sworn on the 30th May 2016 and 11th January 2017.

2. The application is opposed by Jackton Abaja Awuonda, the Defendant, through his replying affidavit. sworn on the 1st July 2016.

3. The counsel for the plaintiff and defendant filed written submissions dated 9th May 2017 and 13th June 2017 respectively.

4. The following are the issues for the courts determinations;

a) Whether the Plaintiff has established a prima facie case with a probability of success for the temporary injunction to issue.

b) Who pays the costs.

5. The court has carefully considered the grounds on the notice of motion, affidavit evidence, written submissions and come to the following determinations;

a) That the documentary evidence availed, including the copy of the green card and certificate of official searches confirms that land parcel South Gem/Dienya/620 was registered in the names of Akech Ogala, Wilson Obare and Fanuel Ogonda on first registration on 8th June 1977. The three held a third (1/3) share each and are reportedly all now deceased.

b) That the said land is currently registered in the name ofJackton Abaja Awuonda, the Defendant. He got so registered on 29th December 2004 pursuant to the confirmed grant in Nairobi H.C. Succession Cause No.320 of 1999 dated 21st March 2003. That the Defendant’s title is being challenged by the Plaintiff on the basis of fraud as particularized at paragraph 12 of the plaint dated 24th May 2016.

c) That though the Defendant is the registered proprietor of the suit land and should be taken as the absolute and indefeasible owner of the said land, his title is under challenge in accordance with Section 26 of the Registered Land Act No.3 of 2012 and Article 40 (6) of the Constitution. That it is only fair that the title’s legal status and character of the suit land be safe guarded pending the hearing and determination of the suit. Within one year.

6. That in view of the foregoing the notice of motion dated (amended) on the 30th May 2016 is allowed in the following terms;

a) Prayer 3 is hereby granted, limited to restraining the Defendant by himself, his employees, servants and or agents from selling, mortgaging, charging, transferring, carrying out or continuing with any construction of a permanent nature or carrying out any other activity that could change or alter permanently the nature of land parcel South Gem/Dienya/620 or any part thereof, pending the hearing and determination of this suit within one year.

b) The restraining order be in force for one year unless otherwise ordered.

c) Costs be in the cause

Order accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 15TH DAY OF NOVEMBER 2017

In presence of;

Plaintiff Absent

Defendant Absent

Counsel Mr. Gachuba for Ochuka for Plaintiff

Mr. Kowinoh for Defendant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/11/2017

15/11/2017

S.M. Kibunja Judge

Oyugi court assistant

Parties absent

Mr. Gachuba for Ochuka for Plaintiff/Applicant.

Mr. Kowinh for Defendant/Respondent.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/11/2017