[2016] KEELC 199 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.260 OF 2014

JEREMIAH OGOLA RAJWAYI ….......................................................................PLAINTIFF

VERSUS

ECUBETH FLORENCE ODERA ONGUDU .............................................................DEFENDANT

RULING

1. Eucabeth F.O. Odera, the Defendant, filed the notice of motion dated 27th January 2016 seeking to have Jeremiah O. Rajwayi, the Plaintiff, restrained from trespassing, encroaching, destroying, breaking, demolishing, handling or in any way interfering with the perimeter wall surrounding land parcels Kisumu/Konya/5475, 5476and 5499 pending the hearing and determination of this suit. The Defendant also seeks for the report of the site visit of 16th March 2015 be made known to the parties and costs. The application is based on the ten (10) grounds marked (a) to (j) on the notice of motion and supported by the affidavits sworn by the Defendant on the 27th January 2016 and 14th March 2016.

2. The application is opposed by Jeremiah O. Rajwayi, the Plaintiff, through his replying affidavit sworn on the 1st march, 2016.

3. The notice of motion came up for hearing on the 19th april 2016 when M/S Kymazima and Mr. Emukule, learned counsel for the Defendant and Plaintiff respectively, agreed to file written submissions. The Defendant’s counsel filed their submissions dated 9th May 2016 on the 10th May 2016, while the Plaintiff’s counsel filed theirs dated 23rd May 2016 on the 24th May 2016. The Plaintiff’s counsel filed another written submissions dated 7th June 2016 on the same date responding to that filed by the Defendant’s counsel.

4. The issues for determination by the court are as follows:

a) Whether the Defendant has established a prima facie case with a probability of success for issuance of temporary injunction at the interlocutory stage.

b) Whether the surveyor report prepared pursuant to the consent order of 23rd February 2015 should be released to the parties.

c) Who pays the costs of the application.

5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence provided by both parties, written submissions by counsel, the pleadings filed and come to the following conclusions;

a) That this suit was commenced by the Plaintiff against the Defendant vide the plaint dated 3rd September 2014. That the Plaintiff averred that he is the registered proprietor of land parcel Kisumu/Konya/5499 and annexed a copy of the title deed for the said land issued on 22nd April 2009 in his name. That the Plaintiff avers that the Defendant encroached onto the said land in July 2014 and pray for mandatory and permanent injunction, general damages and costs.

b) That filed contemporaneously with the plaint was the notice of motion under certificate of urgency seeking for restraining orders against the Defendant. That the interim orders in terms of prayers 1 and 2 were issued on 23rd September 2014, extended on 7th October 2014, 18th November 2014, 9th December 2014, 23rd February 2015, 24th March 2014 and 15th June 2015.

c) That the Defendant filed her replying affidavit sworn on the 10th November 2014, but has not to date filed a statement of defence to the Plaintiff’s claim. That the Defendant deponed in her replying affidavit that she own land parcel Kisumu/Konya/5476 jointly with her late husband and that the plot is adjacent to that of the Plaintiff. That the Defendant further deponed that she owns parcel Kisumu/Konya/5475 which she bought from one Grace Akinyi Odhiambo and annexed a copy of the title deed for that parcel issued on 6th August 2007 in the name of Grace Akinyi Odhiambo.

d) That following the consent order of 23rd February 2015 for the County Surveyor to establish the boundaries of land parcels Kisumu/Konya/5499, 5475and5476, a report dated 23rd March 2015 signed by one Vincent Oluoch for County Surveyor Kisumu, was filed with the court on 1st April 2015.

That the surveyor found that Plaintiff’s plot Kisumu/Konya/5499 was 0. 34 hectares on the ground while its registered acreage was 0. 71 hectares. That the surveyor also found that the two plots claimed by the Defendant, being Kisumu/Konya/5475 and5476, were 0. 46 hectares on the ground while the total registered area was 0. 70 hectares. That the report further shows that the ground area in contest was 0. 40 hectares and the surveyor recommendation is that it be shared equally between plots 5499 onone part and plots 5475 and 5476(combined) on the other part.

e) That it is not clear why the parties in this suit have not moved the court to get copies of the said surveyor’s report for their information and consideration. That the court orders that the Deputy Registrar do avail a copy of the surveyor’s report to the counsel for the parties to enable the parties give instructions to their advocates as to whether the recommendations were acceptable and or the way forward.

f) That the Defendant having not filed a statement of defence, and more importantly, not having a subsisting claim against the Plaintiff that is awaiting trial in this suit, has no basis of seeking for temporary injunction against the Plaintiff as she would be incapable of complying with any of the principles set out in Giella –V- Cassman Brown & Co. Ltd[1973}E.A 358.

6. That in view of the foregoing the court finds that the defendant has only partially succeeded in the notice of motion dated 27th January 2016 and orders as follows:

a) That prayer 5 is granted and the Deputy Registrar is hereby directed to immediately forward to the parties’ counsel a copy of the surveyor’s report dated 23rd march 2015 and filed in court on the 1st April 2015.

b) That the costs of the application be in the cause.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 16th DAY OF NOVEMBER 2016

In presence of;

Plaintiff Absent

Defendant Absent

Counsel Mr Kuifei Otieno for Plaintiff

Mr Onyango for Madialo for Defendant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

16/11/2016

16/11/2016

S.M. Kibunja Judge

Oyugi court assistant

Parties absent

Mr Onyango for Madialo for Defendant.

Mr Kiufei Otieno for Plaintiff

Court: Ruling dated and delivered in open court in presence of Mr. Kuifei Otieno for Plaintiff and Mr. Onyango for Madialo for Defendant.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

16/11/2016