[2016] KEELC 502 (KLR)
The court found that the applicant, although a registered proprietor, had not established a prima facie case for the grant of a temporary injunction. The respondents' evidence showed they had been in occupation and possession of the suit land for many years, including before the death of the previous proprietor,...
Source-derived case information.
- Citation
- [2016] KEELC 502 (KLR)
- Parties
- Applicant: John Owuor Akach; Respondent: Joseph Oloo Akach; Respondent: Eudia Anyango; Respondent: Collins Nyariro Akach
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Land Case 200 of 2014
- Procedural Posture
- Land Case / Interlocutory Application for Injunction
- Outcome
- application dismissed
- Legal Topics
- Interlocutory Injunctions, Family Land Disputes, Registered Proprietorship, Possession and Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Owuor Akach
Applicant
Joseph Oloo Akach
Respondent
Eudia Anyango
Respondent
Collins Nyariro Akach
Respondent
Procedural Posture
Land Case / Interlocutory Application for Injunction
Legal Issues
- 1 Whether the applicant has established a prima facie case for the grant of a temporary injunction restraining the respondents from trespassing or interfering with the applicant's use of land parcel Kisumu/Rata/1367 pending determination of the suit.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the applicant, although a registered proprietor, had not established a prima facie case for the grant of a temporary injunction. The respondents' evidence showed they had been in occupation and possession of the suit land for many years, including before the death of the previous proprietor, Shadrack Akach Akach. The applicant's claim of recent trespass was not substantiated, and the other registered proprietors had not supported the application. In the interests of justice and family unity, the court held that the status quo should be maintained, with all parties continuing to occupy the land as before until the suit is heard and determined. The application for a...
Court Disposition
application dismissed
Orders
- The notice of motion dated 4th July 2014 is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
LAND CASE NO.200 OF 2014
JOHN OWUOR AKACH………………………………………APPLICANT
VERSUS
JOSEPH OLOO AKACH…………………………...…………….1ST RESPONDENT
EUDIA ANYANGO ……………………………………………….2ND RESPONDENT
COLLINS NYARIRO AKACH……………………………………3RD RESPONDENT
RULING
1. The Applicant, John Owuor Akach, through notice of motion dated 4th July 2014 seeks for Joseph Oloo Akach, Eudia Anyango and Collins Nyariro Akach hereinafter refered to as the 1st to 3rd Respondents respectively, to be restrained from trespassing into or interfering with the Applicant’s use of land parcel Kisumu/Rata/1367 pending the hearing and determination of this suit.
The application is based on the seven grounds on its face and the supporting affidavit sworn by John Owuor Akach on the 8th July 2014.
2. The application is opposed by the Respondents through their joint replying affidavit sworn on 26th October 2015.
3. The application came up for hearing on the 28th June 2016 when
Mr. Onyango, learned counsel for the Applicant, and the three Respondents in person made their rival verbal submissions.
4. The issue is whether the Applicant has made a case for the issuing of injunctive orders at this interlocutory stage. Secondly who pays the costs.
5. The court has considered the grounds on the notice of motion, the affidavit evidence by both sides, the rival submissions and come to the following determinations;
a) That the Applicant and the Respondents are related by being the sons and widow to the late Shadrack Akach Akach.
b) That though the Applicant has claimed that the Respondents entered onto the suit land in 2011, the Respondents have disputed that claiming that they have been in occupation for many years and were in possession and occupation by the time Shadrack Akach Akach died.
c) That though the Applicant is one of the three registered proprietors to the said land, the two others have not indicated their support to his application or their distaste to the Respondents occupation.
d) That in view of the finding in (b) and (c) above, the court finds that the Applicant has not established a prima facie case for temporary injunction orders to be issued at this stage. That it is preferable and just that the parties continue occupying the land the way they have been doing as this suit is heard and determined. That so as to foster the unity of the parties who are family members, each party will bear their own costs in the notice of motion.
6. That flowing from the foregoing the notice of motion dated 4th July 2024 is dismissed with each party bearing their own costs.
It is so ordered.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 5TH DAY OF OCTOBER 2016
In presence of;
Applicant Present
Respondents Present
Counsel Mr Olel for the Applicant.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
5/10/2016
5/10/2016
S.M. Kibunja J.
Oyugi Court Assistant
Applicant present
Respondent present
Mr Olel for the Plaintiff
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
5/10/2016
Court: Ruling delivered in open court in presence of all parties and
Mr Olel for the Applicant.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
5/10/2016