[2015] KEHC 5010 (KLR)
The court found, on a prima facie basis, that the objector Barrack Mudhune Owegi had demonstrated continuous and historical use of the suit property, as evidenced by local administration correspondences and a 1993 agreement. The applicant, James Otieno Amollo, was found to be a recent occupant, having moved onto the...
Source-derived case information.
- Citation
- [2015] KEHC 5010 (KLR)
- Parties
- Applicant: James Otieno Amollo; Respondent: Barrack Evans Owegi Mudhune; Respondent: Gabriel Olando Wangbel
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1305 of 2013
- Procedural Posture
- Succession Cause / Ruling on Preliminary Issue Regarding Use and Occupation of Land Pending Full Trial
- Outcome
- Interim orders granted restraining applicant from further use of the land; exclusive use to objector pending trial.
- Legal Topics
- Interim Injunctions, Use and Occupation of Land, Succession Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Otieno Amollo
Applicant
Barrack Evans Owegi Mudhune
Respondent
Gabriel Olando Wangbel
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Issue Regarding Use and Occupation of Land Pending Full Trial
Legal Issues
- 1 Who has been in actual use and occupation of land parcel No. EAST GEM/ANYIKO/966 pending determination of the succession cause.
- 2 Whether the applicant should be restrained from further use of the suit property until the substantive objection is determined.
Ratio Decidendi
The court found, on a prima facie basis, that the objector Barrack Mudhune Owegi had demonstrated continuous and historical use of the suit property, as evidenced by local administration correspondences and a 1993 agreement. The applicant, James Otieno Amollo, was found to be a recent occupant, having moved onto the land in 2012 and constructed a house. To preserve the status quo and prevent prejudice pending the full trial of the succession dispute, the court ordered that the applicant refrain from further use or development of the land beyond harvesting existing crops and residing in the current house. Exclusive use was granted to the objector, with restrictions against disposal or...
Court Disposition
Interim orders granted restraining applicant from further use of the land; exclusive use to objector pending trial.
Orders
- The applicant, James Otieno Amollo, shall from the end of 2015 not plant, plough, build, erect any structure, or otherwise use land parcel EAST GEM/ANYIKO/966 to the detriment of the respondent.
- The applicant may harvest crops planted in the current year and reside in the house already constructed as at the time of this ruling until determination of the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
SUCCESSION CAUSE NO.1305 OF 2013
[Formerly Siaya Succeesion No.29 of 2011]
IN THE MATTER OF THE ESTATE OF: DOMINIC OMOR OBOTE aliasDOMNICUS OMORO OBOTE..........................................DECEASED
AND
IN THE MATTER OF AN APPLICATION BY:
JAMES OTIENO AMOLLO............................PETITIONER
VERSUS
BARRACL EVANS OWEGI MUDHUNE)
GABRIEL OLANDO WANGBEL )...................OBJECTORS
R U L I N G
1. When the matter came up for hearing of applicants application dated 27/11/14 I did order as a preliminary issue this court ought to determine prima-facie who has been using land parcel No. EAST GEM/ANYIKO/966.
Both parties seemed to refer the deceased as their cousin and or grandfather. I ordered that submissions be filed to determine this preliminary issue
2. I have perused the long history of their matter based on the several affidavits and the submissions. I am satisfied that the prima facie evidence presented by the objector Barrack Mudhune Owegi clearly shows that he has been in constant use of the land. This conclusion is informed by the correspondences between the local provincial administration in particular the Chief Yala Township Location and the District Officer Yala. The letter and the “agreement” dated 26/5/1993 buttress my above finding.
3. It appears that the applicant is a recent occupant of the suit property. He has not denied for a fact that he moved into the suit land somewhere in the year 2012. There is a house which he did construct. The respondent however seemed to have a long history of the use and occupation of the land.
4. Consequently and pending the determination of the substantive objection proceedings and taking cognisance of the prevailing circumstances I do order that;
The applicant James Otieno Amollo shall from the end of the year 2015 not plant, plough build or erect any structure or use the suit parcel of land EAST GEM.ANYIKO/966. Or in any other way use the land to the detriment of the respondent, his servants and agents
The applicant shall harvest the crops he has planted this year and may live in the house already constructed as at the time of this ruling till the determination of this cause.
the respondent Barrack Mudhune Owegi shall have exclusive use of the land but shall not dispose, charge or in any other way deal with the same so as to prejudice the determination of this cause.
The parties to formally fix this matter for full trial by way of viva voce evidence.
Each party to bear their respective costs.
Dated and delivered at Kisumu this 14th day of May 2015
H. K. CHEMITEI
J U D G E
In the presence of:
…..........................counsel for the petitioner/respondent
…..........................counsel for the objectors