[2018] KEELC 3505 (KLR)

[2018] KEELC 3505 (KLR)

The court found that the consent order which led to the subdivision of the land had not been set aside and continued to subsist. No substantive suit had been filed to challenge the consent on grounds such as fraud or misrepresentation. Furthermore, the applicant failed to annex a draft Memorandum of Appeal,...

Source-derived case information.

Citation
[2018] KEELC 3505 (KLR)
Parties
Plaintiff: Nahashon Ochieng Onyango; Defendant: Florence Mwanika Onyango; Defendant: Henry Otieno; Defendant: Bernard Osore; Defendant: Benjamin Osengo; Defendant: Philip Opiyo; Defendant: Peter Gatimu; Defendant: Everlyne Wanyama; Defendant: John Simiyu; Defendant: Hallin Wanyama; Defendant: Mary Peter; Defendant: Alice Wanyonyi; Defendant: Everlyne Simiyu
Court
Environment and Land Court
Court Station
Environment and Land Court at Kitale
Jurisdiction
Kenya
Case Number
Land Case 31 of 2009
Procedural Posture
Land Case / Ruling on Application for Injunction and Stay Pending Appeal
Outcome
application dismissed with costs to the respondent
Judges
FM Njoroge
Legal Topics
Injunctions, Stay of Execution, Consent Orders, Setting Aside Consents
Source Language
en
Land and Property Injunctions Stay of Execution Consent Orders Setting Aside Consents

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Summary, issues, holding and outcome

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Parties

Nahashon Ochieng Onyango

Plaintiff

Florence Mwanika Onyango

Defendant

Henry Otieno

Defendant

Bernard Osore

Defendant

Benjamin Osengo

Defendant

Philip Opiyo

Defendant

Peter Gatimu

Defendant

Everlyne Wanyama

Defendant

John Simiyu

Defendant

Hallin Wanyama

Defendant

Mary Peter

Defendant

Alice Wanyonyi

Defendant

Everlyne Simiyu

Defendant

Procedural Posture

Land Case / Ruling on Application for Injunction and Stay Pending Appeal

Legal Issues

  1. 1 Whether the applicant is entitled to an injunction or stay of execution of the orders made on 24/8/2017 pending appeal.
  2. 2 Whether the subsisting consent order can be set aside without a substantive suit alleging grounds such as fraud or misrepresentation.

Ratio Decidendi

The court found that the consent order which led to the subdivision of the land had not been set aside and continued to subsist. No substantive suit had been filed to challenge the consent on grounds such as fraud or misrepresentation. Furthermore, the applicant failed to annex a draft Memorandum of Appeal, depriving the court of the ability to assess the likelihood of success of the intended appeal. In the absence of any challenge to the consent order and without sufficient material to justify the grant of an injunction or stay, the court held that there were no good grounds to grant the application. The application was therefore dismissed with costs to the respondent.

Court Disposition

application dismissed with costs to the respondent

Orders

  • The application dated 20/11/2017 is dismissed with costs to the respondent.