[2017] KEELC 3414 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.155 OF 2016

LILIANE SHIBALILA MUDENYO

JOAN JAYVONNE MDENYO

MELSA OBANDA OSORE

(Suing as Trustees of NASIO SELF HELP GROUP......................................PLAINTIFFS

VERSUS

BENEDICT OPATA

WAMBANI WERE

(Suing on behalf of themselves and on behalf of the

Mumias Teachers Society) .............................................................................DEFENDANTS

RULING

1. Liliane Shibalila Mudenyo,Joan Jayvonne MdenyoandMelsa Obanda Osore, suing as trustees of Nasio Self Group, the Plaintiff, filed the notice of motion dated 30th June 2016 seeking for temporary injunction to restrain Benedict OpalaandWambaui Were, sued on their own behalf and on behalf ofMumias Teachers Society, the Defendants, from trespassing, constructing, working, laying claim or in any other way interfering with land parcel South Wanga/Lureko/2864 pending the hearing and determination of this suit. The application is based on the two grounds on the notice of motion which is also supported by the affidavit of Melsa Obanda Osore, sworn on the 29th June 2016. The application is opposed by the Defendants through the replying affidavit of the Honorary Secretary, sworn on the 11th July 2016.

2. The Defendants filed the notice of motion dated 28th July 2016 seeking to have the Plaintiff restrained from entering upon, trespassing, conduction of any educational activity thereon, or in any manner dealing or interfering with the Defendants proposed portions No.30, 33 and 34 known as Noah’s Ark Academy on L.R. No.8056/317, Mumias Township pending the determination of this suit. The application is based on the four grounds on the notice of motion and is supported by the affidavit of Wambai Were Wambiri, the Honorary Secretary, sworn on the 28th July 2016. The application is opposed by the Plaintiff through the replying affidavit sworn by Liliane Shibalila Mudenyoon the 4th October 2016.

3. The counsel for the parties appeared in court on the 10th October 2016 and entered consent to have both applications dealt with together through written submissions. The counsel for the Plaintiffs filed their submissions dated 17th October 2016 in respect to their application dated 29th June 2016. They also filed undated written submissions of the Defendants notice of motion dated 28th July 2016. On their part, counsel for the Defendants filed written submissions dated 12th October 2016 in respect of their application dated 28th July 2016. They also filed written submission dated 28th October 2016 in respect to the Plaintiffs notice of motion dated 29th June 2016.

4. The issues for determination in both applications are as follows;

a) Whether the respective parties have established a prima facie case with a probability of success for temporary injunction to issue at the interlocutory state.

b) What orders to issue

c) Who pays the costs in each of the application.

5. The court has after considering the grounds on the two applications, affidavit evidence by both parties and written submission by counsel come to the following determinations;

a) That the Plaintiff is by dint of the title deed issued on 15th January 2007, whose entries are confirmed by the certificate of official search issued on 26th January 2015, the registered proprietor of land parcel Wanga/Lureko/2864 and under Section 26 (1) of the Land Registration Act No.3 of 2012, the court is obligated to take their title as indefeasible and absolute. Their title can however be impugned on grounds of fraud or misrepresentation involving the Plaintiff or upon evidence that the title has been acquired illegally, unprocedurally or through a corrupt scheme.

b) That the ground on which the Plaintiffs land is situated is claimed by the Defendants as the same position their Plots No.30, 33and 34 of land parcel L.R.8056/317, which is registered in the Defendants name, are situated.

c) That the Plaintiffs came to court after the Defendants had commenced the development of permanent buildings on the land in dispute. That the Defendants have confirmed the permanent nature of their development which if allowed to proceed will permanently alter the physical condition of the land in dispute and its use.

d) That due to the competing claims of both parties over the same land, it is only fair that the developments that had been commenced by the Defendants be stopped pending the hearing and determination of this suit.

6. That flowing from the foregoing, the court issues the following orders:

a) That the notices of motion dated 29th June 2016 and 28th July 2016 are hereby allowed, limited to restraining both the Plaintiffs and Defendants from carrying any new constructions or continuing with any construction on the contested parts of the land parcel South Wanga/Lureko/2864or plotsNo.30, 33and 34of land parcelL.R.8056/317, pending the hearing and determination of this suit.

b) That costs of the two application be in the cause.

c) That this being a matter emanating from the territorial jurisdiction of Kakamega Environment and Land Court, the same is hereby transferred to that court for hearing and determination.

d) That the suit be mentioned at the Environment and Land Court Kakamega for directions on the 29th March 2017.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 15TH DAY OF MARCH 2017

In presence of;

Plaintiffs Absent

Defendants Absent

Counsel Mr. Namatsi for the Plaintiffs

Mr. Ndobi for the Defendants

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/3/2017

15/3/2017

S.M. Kibunja Judge

Court assistant Oyugi

Parties absent

Mr. Namatsi for the Plaintiff

Mr. Ndobi for the Defendants

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/3/2017

Court: Ruling dated and delivered in open court in presence of Mr. Namatsi and Ndobi for the Plaintiff and Defendants respectively.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

15/3/2017