[2015] KECA 29 (KLR)
The Court of Appeal agreed with the trial judge that the issue of ownership of the suit property could only be conclusively determined upon hearing viva voce evidence. As such, interlocutory orders restraining parties from dealing with the property were appropriate pending the substantive hearing. Upon the...
Source-derived case information.
- Citation
- [2015] KECA 29 (KLR)
- Parties
- Appellant: Mohammud Mohammed Alio; Appellant: Abdullahi Ismael Morow; Respondent: Richard Obiero Nyakundi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 61 of 2014
- Procedural Posture
- Civil Appeal / Withdrawal Before Hearing
- Outcome
- Appeal marked as withdrawn under rule 96(5) of the Court of Appeal Rules, with no order as to costs.
- Judges
- DK Musinga
- Legal Topics
- Interlocutory Injunctions, Ownership Disputes, Priority Hearing, Withdrawal of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohammud Mohammed Alio
Appellant
Abdullahi Ismael Morow
Appellant
Richard Obiero Nyakundi
Respondent
Procedural Posture
Civil Appeal / Withdrawal Before Hearing
Legal Issues
- 1 Whether the trial court erred in declining to grant interlocutory orders regarding the suit property.
- 2 Whether the issue of ownership of the suit property could be determined without viva voce evidence.
- 3 Whether the appeal should proceed in light of the pending substantive suit.
Ratio Decidendi
The Court of Appeal agreed with the trial judge that the issue of ownership of the suit property could only be conclusively determined upon hearing viva voce evidence. As such, interlocutory orders restraining parties from dealing with the property were appropriate pending the substantive hearing. Upon the appellant's application to withdraw the appeal and the respondent's lack of objection, the Court marked the appeal as withdrawn under rule 96(5) of the Court of Appeal Rules, with no order as to costs. The Court further recommended that the substantive suit in the High Court be heard on a priority basis to resolve the ownership dispute expeditiously.
Court Disposition
Appeal marked as withdrawn under rule 96(5) of the Court of Appeal Rules, with no order as to costs.
Orders
- The appeal is marked as withdrawn under rule 96(5) of the Court of Appeal Rules.
- No order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT KISII
(CORAM: MARAGA,MUSINGA & MURGOR,JJ.A.)
CIVIL APPEAL NO. 61 OF 2014
BETWEEN
MOHAMMUD MOHAMMED ALIO
ABDULLAHI ISMAEL MOROW....................................................APPELLANTS
AND
RICHARD OBIERO NYAKUNDI......................................................RESPONDENT
(Appeal from the Ruling and Order of the High Court of Kenya at Kisii
( Okong'o, J.) dated 6th day of June, 2014
H.C.C. SUIT NO. 377 OF 2013
************************
ORDER OF THE COURT
When this appeal was called out for hearing, this Court, on its own motion, expressed to counsel its unwillingness to hear it considering the nature of the matter in dispute.
The trial Court ordered that pending hearing and determination of the substantive suit pending before it, neither party should enter, develop, lease or transfer the suit property, namely L.R. No. Kisii Municipality/Block 1/757.
Each of the parties claim to be the rightful owner of the property and the trial judge heed that the issue of ownership of the suit property could only be conclusively determined upon hearing vica voce evidence. He therefore declined to grant the interlocutory orders that were being sought by the appellant.
We are in agreement with the views expressed by the trial judge.
When the court notified counsel of its views as hereinabove stated, Mr. Bosire, learned counsel for the appellant, applied to withdraw the appeal but requested that an order be made for the substantive suit to be heard on priority basis, to which Mr. Ochoki, learned counsel for the respondent, had no objection.
In the circumstances, this appeal is marked as withdrawn under rule 96 (5) of this Court's Rules with no order as to costs.
We further recommend that H.C.C.C. No. 377 of 2013 be heard on priority basis.
DATED at Kisii this 6th day of May, 2015
D.K.MARAGA
..................................
JUDGE OF APPEAL
D.K. MUSINGA
.................................
JUDGE OF APPEAL
A.K.MURGOR
..................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR