[2024] KEELC 6307 (KLR)
The court found that the applicants had demonstrated a prima facie case for the preservation of the suit land, given their claim of adverse possession and the risk of the respondent alienating or interfering with the property before the suit is determined. The respondent did not oppose the application, and the court...
Source-derived case information.
- Citation
- [2024] KEELC 6307 (KLR)
- Parties
- Plaintiff: Magaiwa Monanka; Plaintiff: Mwita Monanka; Plaintiff: Makenge Monanka; Plaintiff: Mariko Chacha Monanka; Respondent: Joseph Gitangita Magoko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Enviromental and Land Originating Summons E018 of 2024
- Procedural Posture
- Originating Summons / Interlocutory Application (ruling on Motion for Status Quo Orders Pending Suit)
- Outcome
- Status quo orders granted; parties restrained from dealing with the suit land pending determination of the suit.
- Judges
- GMA Ongondo
- Legal Topics
- Adverse Possession, Limitation of Actions, Status Quo Orders, Succession and Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magaiwa Monanka
Plaintiff
Mwita Monanka
Plaintiff
Makenge Monanka
Plaintiff
Mariko Chacha Monanka
Plaintiff
Joseph Gitangita Magoko
Respondent
Procedural Posture
Originating Summons / Interlocutory Application (ruling on Motion for Status Quo Orders Pending Suit)
Legal Issues
- 1 Whether the applicants are entitled to status quo orders to preserve the suit land pending determination of the suit for adverse possession.
- 2 Whether the respondent should be restrained from partitioning, subdividing, or transferring the suit land before the suit is heard and determined.
Ratio Decidendi
The court found that the applicants had demonstrated a prima facie case for the preservation of the suit land, given their claim of adverse possession and the risk of the respondent alienating or interfering with the property before the suit is determined. The respondent did not oppose the application, and the court was satisfied that status quo orders were necessary to prevent prejudice to the applicants' interests. Accordingly, the court ordered that the status quo be maintained, restraining all parties from selling, charging, transferring, or subdividing the suit land pending the hearing and determination of the suit.
Court Disposition
Status quo orders granted; parties restrained from dealing with the suit land pending determination of the suit.
Orders
- Status quo to be maintained over LR No. Bukira/Buhirimonono/332 pending hearing and determination of the suit.
- Parties are restrained from selling, charging, transferring, or subdividing the suit land until final determination.
Full Case Text
Judgment text and source record
30 paragraphs
Monanka & 3 others v Magoko (Enviromental and Land Originating Summons E018 of 2024) [2024] KEELC 6307 (KLR) (26 September 2024) (Ruling)
Neutral citation: [2024] KEELC 6307 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Enviromental and Land Originating Summons E018 of 2024
GMA Ongondo, J
September 26, 2024
IN THE MATTER OF : LIMITATION OF ACTIONS ACT CHAPTER 22 LAWS OF KENYA AND IN THE MATTER OF: CLAIM FOR ADVERSE POSSESSION PERSUANT TO SECTION 38 OF THE LIMITATION OF ACT AND IN THE MATTER OF : LR NO. BUKIRA/BUHIRIMONONO/332
Between
Magaiwa Monanka
1st Plaintiff
Mwita Monanka
2nd Plaintiff
Makenge Monanka
3rd Plaintiff
Mariko Chacha Monanka
4th Plaintiff
and
Joseph Gitangita Magoko
Respondent
Ruling
1. By Notice of motion dated 20th June 2024, the applicants through Mr. Mwita Kerario and Company Advocate are seeking the order thus;-a.That pending the hearing and determination of this suit this court be pleased to stay the execution of the orders and/or the certificate of confirmation of grant issued in Kehancha Senior Principal Magistrate’s Court Succession No. E020 of 2021 particularly the partition and/or subdivision and transfer of portions of land parcel No. Bukira/Buhirimonono/332. (the suit land herein)b.That this Honorable court be pleased to grant such others of orders as may be suitable for preservation of the suit property pending the hearing and determination of the suit.c.That the costs of this application be provided for.
2. The motion is founded upon the applicant’s affidavit of 29 paragraphs of even date and 21 grounds on the face of it. The grounds include that;-1. The defendant, intends to partition and/or subdivide the suit land in execution of the orders of the subordination court without regard to the rights and interest of the plaintiffs who are in actual occupation and possession of the suit property.2. That the defendant has started to destroy known boundary fitness of the suit property and threatens to evict the plaintiff from the suit property.
3. Mr. Mwita Kerario learned counsel for the applicant has implored the court to grant status quo order in lieu of the injunction as sought in the application over the suit land.
4. The respondent duly served has not opposed the application.
5. In the circumstances, the motion is hereby determined in terms of status quo order to prevail over the suit land pending the outcome of the suit pursuant to Sections 13 (7) (a) of the Environment and Land Court Act 2015 (2011) and the decision in Ogada =vs= Mollin (2009) KLR 620.
6. For clarity, the parties shall not sell, charge, transfer, or subdivide the suit land pending the hearing and determination of this suit.
7. Costs of the motion in the cause.
8. It is so ordered
DATED AND DELIVERED AT MIGORI THIS 26TH DAY OF SEPTEMBER 2024G. M. A. ONGONDOJUDGEIn the presence of ;Mr. Mwita Kerario learned counsel for applicantTom- Court Assistant