[2005] KEHC 3244 (KLR)
The court held that the appellant could not claim ownership or seek eviction orders because the issue of ownership of land No.OLOONTARE/16 was still in dispute, with an appeal pending before the Minister for Lands. The appellant had not produced any documentary evidence of ownership, and the land was not registered...
Source-derived case information.
- Citation
- [2005] KEHC 3244 (KLR)
- Parties
- Appellant: Lazaro Kiruta Olentuytia; Respondent: David Obunga Amolo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 165 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Legal Topics
- Land Ownership Disputes, Adjudication Process, Pending Appeals, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lazaro Kiruta Olentuytia
Appellant
David Obunga Amolo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant is entitled to orders of eviction and permanent injunction against the respondent pending determination of an appeal to the Minister for Lands.
- 2 Whether the appellant has established ownership of land No.OLOONTARE/16 sufficient to warrant the reliefs sought.
- 3 Whether the suit was premature given the pending appeal on land adjudication.
Ratio Decidendi
The court held that the appellant could not claim ownership or seek eviction orders because the issue of ownership of land No.OLOONTARE/16 was still in dispute, with an appeal pending before the Minister for Lands. The appellant had not produced any documentary evidence of ownership, and the land was not registered in his name due to the unresolved appeal. The magistrate was correct in finding that the suit was premature, as the dispute over ownership had not been conclusively determined. It would be unjust to order the respondent's eviction before the appeal is resolved, especially given the respondent's long-standing occupation of the land. The appeal was therefore dismissed as lacking...
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal Case 145 of 2001
LAZARO KIRUTA OLENTUYTIA ………………………………….. APPELLANT
VERSUS
DAVID OBUNGA AMOLO ………………………………………… RESPONDENT
JUDGMENT
Appellant LAZARO KIRUTA OLENTUYTIA sued the respondent DAVID ABUNGA AMOLO in the Senior Resident Magistrate Court Kilgoris seeking for orders of eviction and permanent injunction restraining the respondent from interfering with land No.OLOONTARE/16. He also sought for costs of the suit.
Plaintiff told court that the land in dispute was his. Demarcation was done in 1982 and land allocated to him in 1988. The father of the respondent who is now deceased filed an objection during the adjudication period against the appellant being allocated the land. The objection was heard but dismissed. The Respondent father then appealed to the Minister for Lands. That appeal is yet to be heard. Appellant said he gave the respondent father a portion of 2 acres to utilize. However after his death the respondent has ploughed 10 acres. Appellant called one JOSHUA NYAKANI OMASIRE (PW2) the Land Registrar in Transmara as a witness. PW2 said the land in dispute was in the name of appellant and one ANN WAIRIMU MAINGA. The land was however not registered in their names as there was an appeal pending.
Respondent stated the land belonged to his father. Appellant later settled on a portion of that land. During demarcation they found the land was registered in the name of appellant. His father objected. The objection was dismissed but his father appealed. Appeal not yet heard.
It was submitted that the learned magistrate erred in dismissing the suit even after making a find that the land belonged to the appellant. Even if there is an appeal it is not between the appellant and respondent but between the appellant and respondents father
Indeed the Land Registrar (PW2) said that the land was in the names of the appellant and another. However he categorically said that the land was not registered as there was an appeal pending. The appellant did not produce any document to prove his ownership of the land. Though the objection filed by the Respondents father was dismissed, until the appeal filed is fully determined he cannot claim to be the owner of the land. This is why the land office have not issued any title documents for the land. The issue of ownership is still in dispute and as the magistrate rightly ruled the appellant went to court prematurely. True the dispute is not between the Appellant and the defendant but one cannot close his mind to the fact that the appellant to the Minister is the Respondent’s father. In his evidence the respondent had stated that they have lived in the land since 1961. It would be unjust to order his eviction before the issue of ownership is fully determined.
I therefore find that the magistrate came to a right conclusion. I find the appeal has no merit and it is dismissed with costs.
Dated this 11th day of April 2005
KABURU BAUNI
JUDGE