[2017] KEELC 3853 (KLR)
The court found that the consent order entered into by the parties, which granted a permanent injunction restraining the defendants from trespassing, encroaching, or interfering with land parcel Number 31 and from carrying out funeral arrangements or burial on the property, was in line with the Constitution and...
Source-derived case information.
- Citation
- [2017] KEELC 3853 (KLR)
- Parties
- Plaintiff: Leonard Ouma Mrongo; Defendant: Monica Akinyi Misangya; Defendant: John Obilloh Jared; Defendant: Michael Omondi Abuya; Defendant: Henry Otieno Abuya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 858 of 2017
- Procedural Posture
- Land and Environment Case / Final Judgment
- Outcome
- Suit determined by consent; permanent injunction granted; no order as to costs.
- Judges
- GMA Ongondo
- Legal Topics
- Permanent Injunction, Land Trespass, Burial Rights, Consent Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Ouma Mrongo
Plaintiff
Monica Akinyi Misangya
Defendant
John Obilloh Jared
Defendant
Michael Omondi Abuya
Defendant
Henry Otieno Abuya
Defendant
Procedural Posture
Land and Environment Case / Final Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from trespassing, encroaching, or interfering with land parcel Number 31.
- 2 Whether the defendants should be restrained from carrying out funeral arrangements and burial on the plaintiff's property.
Ratio Decidendi
The court found that the consent order entered into by the parties, which granted a permanent injunction restraining the defendants from trespassing, encroaching, or interfering with land parcel Number 31 and from carrying out funeral arrangements or burial on the property, was in line with the Constitution and merited in the circumstances. The consent order was adopted as the final judgment, thereby resolving the dispute in favor of the plaintiff and upholding the sanctity of consent judgments as binding and enforceable.
Court Disposition
Suit determined by consent; permanent injunction granted; no order as to costs.
Orders
- An order of permanent injunction is granted restraining the defendants, their servants, employees, workers or agents from trespassing, encroaching, and invading upon parcel Number 31 situated at Uterere, Gwasi in Homa-Bay County for any reason and specifically from carrying out any funeral arrangements and...
- No orders as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
ENVIRONMENT AND LAND COURT
ELC CASE NO. 858 OF 2017
LEONARD OUMA MRONGO...............................PLAINTIFF
-versus-
MONICA AKINYI MISANGYA.....................1ST DEFENDANT
JOHN OBILLOH JARED............................2ND DEFENDANT
MICHAEL OMONDI ABUYA.......................3RD DEFENDANT
HENRY OTIENO ABUYA............................4TH DEFENDANT
JUDGMENT
1. This suit was filed by way of Plaint dated 19th October 2017, by the Plaintiff represented by Okundi & Co. Advocates. In the plaint, orders sought against the four (4) defendants are :-
a)Order of permanent injunction restraining the Defendants whether by themselves, servants, employees, workers or agents from trespassing, encroaching, invading and or interfering with the peaceful and quite enjoyment, use and occupation of land parcel Number 31 situated at Uterere, Gwasi in Homa- Bay.
b)Order of permanent injunction restraining the defendants whether by themselves, servants, employees, workers or agents from trespassing, encroaching, and invading upon parcel Number 31 so as to restrained from carrying out any funeral arrangements and thereafter proceeding with the burial of one Maheri Samwel Jared (deceased) on land parcel No. 31 or any of my property for that manner.
c)Cost of the suit.
d)Interest on (c) above.
2. On 23/10/2017, Mutungi J, granted an order of temporary injunction in terms of prayer 4 of the Notice of Motion dated 19/10/2017.
3. By a consent order dated 31/10/17 signed by counsel for the Plaintiff/Applicant and counsel for the Defendant/Respondent, the parties have sought to have the suit disposed of in terms of order (a) sought in the plaint. The issue for determination is whether the plaintiff is entitled to orders prayed for in the plaint.
4. I have noted the consent order. It reads-;
“ An order of permanent injunction is hereby granted restraining the defendants whether by themselves, servants, employees, workers or agents from trespassing, encroaching, and invading upon parcel Number 31 situated at Uterere, Gwasi in Homa-Bay County for any reasons and specifically to restrain the said Defendants from carrying out any funeral arrangements and thereafter proceeding with the burial of one Maheri Samwel Jared (deceased) on land parcel No. 31 or any of my property belonging to the Plaintiff for that matter”.
5. I consider the entire suit and the consent order. I find the consent order in line with Article 159(2)(b) and (c) of the Constitution of Kenya 2010. It is merited in the circumstances.
6. I accordingly adopt the consent order as a final Judgment of this court.
7. No orders as to costs.
DELIVERED, DATEDand SIGNEDat MIGORI this 15th day of November 2017.
G. ONGONDO
JUDGE
In presence of :-
Ms. Angawa counsel for the Plaintiff
Tom Maurice – Court Assistant.