[2018] KEELC 1251 (KLR)
The court found that the orders sought by the defendant/applicant could not be granted by way of the present application. It was not clear whether the court had jurisdiction to entertain the matter, particularly given the existence of Succession Cause No 624 of 2014 concerning the same property. The court also noted...
Source-derived case information.
- Citation
- [2018] KEELC 1251 (KLR)
- Parties
- Plaintiff: Leonard Makwa Shibwoni; Defendant: Samson Makhaya Mukabana
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 205 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- NA Matheka
- Legal Topics
- Eviction Procedure, Demolition of Structures, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Leonard Makwa Shibwoni
Plaintiff
Samson Makhaya Mukabana
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff unlawfully demolished the defendant's house and evicted him without due process.
- 2 Whether the court has jurisdiction to issue the orders sought in the application.
- 3 Whether the application is merited in light of the ongoing succession proceedings.
Ratio Decidendi
The court found that the orders sought by the defendant/applicant could not be granted by way of the present application. It was not clear whether the court had jurisdiction to entertain the matter, particularly given the existence of Succession Cause No 624 of 2014 concerning the same property. The court also noted that the application did not meet the threshold for the grant of the orders sought, and that the proper procedure had not been followed. Consequently, the application was dismissed with costs, and the parties were advised to set the main suit down for hearing.
Court Disposition
application dismissed with costs
Orders
- The application dated 28th May 2018 is dismissed with costs.
- Parties are advised to take a hearing date for the main suit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 205 OF 2017
LEONARD MAKWA SHIBWONI..........PLAINTIFF/RESPONDENT
VERSUS
SAMSON MAKHAYA MUKABANA......DEFENDANT/APPLICANT
RULING
This application is dated 28th May 2018 and is seeking the following orders:-
1. That this application be certified as urgent and fit to be heard ex-parte in the first instance and/or on priority basis.
2. That the demolition of the defendants house on the suit property by the plaintiff is manifestly illegal and irregular.
3. That this honourable court issue a warrant of arrest and compel the OCS Kabras Police Station to produce the plaintiff in court to answer charges regarding OB. NO. 33/14/11/2017 which was reported to the police station.
4. That the OCS Kabras Police Station to ensure compliance on the same.
5. That cost of this application be in the cause.
It is brought on the following grounds that if this application is not determined ex-parte in the first instance, the defendant stands the risk of unlawful being dispossessed of the whole suit property which is the only dependent and source of income for the family and himself. The plaintiff intends to realize his right of demolishing and seizing the defendant’s only house by unlawfully evicting him and the family in a purported attempt to exercise his dues without any orders/notices.It is inequitable and illegal for the plaintiff to enforce it right against the defendant prior to determination of this suit and/or without following the substantive procedure. The action to forcefully demolish and evict the defendant contravenes the express provisions of the Land Act. The defendant stands to suffer irreparable loss and damage should the plaintiff continue to construct the structures on the suit property in that he shall be rendered a destitute.
The respondent submitted that, he has not demolished any house belonging to the defendant/applicant.That the defendant/applicant’s house fell down due to lack of maintenance and old age.That the defendant/applicant failed to maintain the house and hence should not blame him for what happened to his old house.That the defendant/applicant has never served me with any court order which he has failed to comply. That any complaint raised by the defendant/applicant at Kabras Police station should be handled by the police and not the court.That the defendant/applicant’s application lacks merit and the same should be struck off with costs.
This court has considered the application and the submissions herein. The plaintiff intends to realize his right of demolishing and seizing the defendant’s only house by unlawfully evicting him and the family in a purported attempt to exercise his dues without any orders/notices. The applicant in his submissions stated that this was family land and subject to Succession Cause No 624 of 2014. I find that the orders sought cannot be issued by way of an application. It is not even clear whether or not this court has jurisdiction to entertain this matter or whether it is sub judice. Parties are advised to take a hearing date in this matter. As it stands now this application is not merited and I dismiss it with costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 9TH DAY OF OCTOBER 2018.
N.A. MATHEKA
JUDGE