[2017] KEELC 2667 (KLR)
The court found that while the Defendant claims his father bought the land from the Plaintiff's husband, he failed to establish a clear nexus between the parcel he claims (parcel 112) and the suit property (Kisumu/Kasule/6255), which is registered in the Plaintiff's name. The Defendant admitted the Plaintiff's...
Source-derived case information.
- Citation
- [2017] KEELC 2667 (KLR)
- Parties
- Plaintiff: Lilian Atieno Odima; Defendant: Erick Omondi Obwayo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 266 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction
- Outcome
- Defendant's application for temporary injunction allowed only to the extent of maintaining the status quo over the portion of land occupied by the Defendant pending the hearing and determination of the suit. Costs in the cause.
- Legal Topics
- Temporary Injunctions, Status Quo Orders, Proprietorship Disputes, Counterclaims, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Atieno Odima
Plaintiff
Erick Omondi Obwayo
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the Defendant has established a prima facie case with a probability of success for a temporary injunction to issue at this stage.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that while the Defendant claims his father bought the land from the Plaintiff's husband, he failed to establish a clear nexus between the parcel he claims (parcel 112) and the suit property (Kisumu/Kasule/6255), which is registered in the Plaintiff's name. The Defendant admitted the Plaintiff's registered proprietorship but did not provide sufficient evidence to challenge her title. The Plaintiff denied interfering with the Defendant's occupation and clarified that her activities were on other parts of the land. The court determined that, in the interests of justice, the status quo regarding the Defendant's occupation should be maintained pending the full hearing. The...
Court Disposition
Defendant's application for temporary injunction allowed only to the extent of maintaining the status quo over the portion of land occupied by the Defendant pending the hearing and determination of the suit. Costs in the cause.
Orders
- Status quo obtaining at the time of filing the suit in respect of the portion of Kisumu/Kasule/6255 occupied by the Defendant to be maintained pending hearing and determination of the suit.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.266 OF 2014
LILIAN ATIENO ODIMA........................................................PLAINTIFF
VERSUS
ERICK OMONDI OMBWAYO............................................DEFENDANT
RULING
1. Erick Omondi Obwayo,the Defendant, filed the notice of motion dated 19th July 2016 seeking for temporary injunction against Lilian Atieno Odima, the Plaintiff, from working, selling, disposing, constructing, building or erecting structures or in any way interfering with land parcel Kisumu/Kasule/6255 pending the hearing and determination of this suit. The application is based on the two grounds on the notice of motion and supported by the affidavit sworn by Erick Omondi Obwayo on the 19th July 2016.
2. The application is opposed by the Plaintiff through the replying
affidavit sworn by Lilian Atieno Odima on the 25th October 2016.
3. The interim orders of temporary injunction was issued on the 18th October 2016 and on the 16th January 2017, the court gave directions on filing of written submissions. The Defendant’s counsel filed their submission on 23rd February 2017 while counsel for the Plaintiff filed theirs on 24th March 2017.
4. The following are the issues for the determination by the court;
a) Whether the Defendant has established a prima facie case with a probability of success for temporary injunction to issue at this stage.
b) Who pays the costs.
5. The court has carefully considered the two grounds on the notice of motion, affidavit evidence, submissions by both counsel and concluded as follows;
a) That the Plaintiff commenced this suit against the Defendant seeking eviction and permanent injunction orders in respect of land parcel Kisumu/Kasule/6255 which she got registered as proprietor on 24th July 2013 as per the copy of title deed and green card in her list of documents dated 11th September 2014.
b) That the Defendant opposed the claim through his defence dated 5th November 2014 and filed in court on the 6th November 2014. The Defendant admits that the Plaintiff is the registered proprietor of the said land but avers that the land does not belong to her as it had been bought from her husband by his (Defendant’s) father in 2006.
c) That though the defence filed contains at paragraphs 11 what may amount to as a counterclaim, the filing fees paid under receipt No.6250172 of 6th November 2017 do not contain fees for filing of the counterclaim and the same is not formally before the court.
d) That while the Defendant’s claim is that his father had bought from the Plaintiff’s husband parcel 112 which he depones is now refered to as Kisumu/Kasule/6255, thecopy of the green card for the parcel Kisumu/Kasule/6255 indicates that it was a subdivision from Plot No.5814. That the Defendant has therefore failed to show any nexus between parcel 112, which he claims his father bought, and parcel Kisumu/Kasule/6255 registered in the Plaintiff’s name.
e) That the Plaintiff has denied any encroachment on the portion of land in occupation by the Defendant. The Plaintiff has further explained that the transactions that she has undertaken are over other parts of the land. That in view of the foregoing, it is only just that the status quo obtaining in respect of the portion of land occupied by the Defendant be maintained pending the hearing and determination of this suit.
6. That flowing from above the Defendant’s notice of motion dated 19th July 2016 is allowed limited to the parties maintaining the status quo obtaining when this suit was filed in respect of the portion of the suit land occupied by the Defendant pending the hearing and determination of this suit. The costs will be in the cause.
It is so ordered.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 14TH DAY OF JUNE 2017
In presence of;
Plaintiff Absent
Defendant Absent
Counsel Mr. Baganda for the Plaintiff
Mr. Arkhio for Wwamu for the Defendant.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
14/6/2017
14/6/2017
S.M. Kibunja Judge
Parties absent
Mr. Arikho for Mwamu for the Applicant/Defendant
Mr. Baganda for the plaintiff
Court: Ruling dated and delivered in open court in presence of Mr. Baganda for the Plaintiff and Mr. Arikhio for Mwamu for Defendant.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
14/6/2017