[2024] KECA 302 (KLR)
The Court found that the application was unopposed, and the applicant had demonstrated apprehension of irreparable harm to her property if the injunction was not granted. To preserve the subject matter of the appeal and prevent the risk of demolition or alteration of the applicant's house and fence, the Court...
Source-derived case information.
- Citation
- [2024] KECA 302 (KLR)
- Parties
- Applicant: Damaris Ayomo Okumu; Respondent: The District Land Registrar, Rachuonyo; Respondent: The Sub-County Surveyor, Rachuonyo; Respondent: The Honourable Attorney General; Respondent: Moses Otieno Oloo; Respondent: Edith Akumu Otieno
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application E007 of 2024
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- Application allowed to the extent of granting an injunction maintaining the status quo.
- Judges
- HA Omondi, PM Gachoka, HM Okwengu
- Legal Topics
- Injunction Pending Appeal, Status Quo Orders, Land Boundary Disputes, Interim Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Damaris Ayomo Okumu
Applicant
The District Land Registrar, Rachuonyo
Respondent
The Sub-County Surveyor, Rachuonyo
Respondent
The Honourable Attorney General
Respondent
Moses Otieno Oloo
Respondent
Edith Akumu Otieno
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction pending the hearing and determination of the appeal.
- 2 Whether the status quo should be maintained regarding the applicant's property and boundaries.
Ratio Decidendi
The Court found that the application was unopposed, and the applicant had demonstrated apprehension of irreparable harm to her property if the injunction was not granted. To preserve the subject matter of the appeal and prevent the risk of demolition or alteration of the applicant's house and fence, the Court exercised its discretion to grant an injunction maintaining the status quo. The new beacons, house, and perimeter wall/fence shall remain in place until the appeal is heard and determined. Costs of the application will abide the outcome of the appeal.
Court Disposition
Application allowed to the extent of granting an injunction maintaining the status quo.
Orders
- An injunction is issued in favour of the applicant against the 4th and 5th respondents to maintain the status quo as of now: the new beacons, the applicant's house, and perimeter wall/fence shall remain in place until the appeal is heard and determined.
- Costs of the application shall abide the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
Okumu v District Land Registrar, Rachuonyo & 4 others (Civil Application E007 of 2024) [2024] KECA 302 (KLR) (19 March 2024) (Ruling)
Neutral citation: [2024] KECA 302 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application E007 of 2024
HA Omondi, PM Gachoka & HM Okwengu, JJA
March 19, 2024
Between
Damaris Ayomo Okumu
Applicant
and
The District Land Registrar, Rachuonyo
1st Respondent
The Sub-County Surveyor, Rachuonyo
2nd Respondent
The Honourable Attorney General
3rd Respondent
Moses Otieno Oloo
4th Respondent
Edith Akumu Otieno
5th Respondent
(An Application for an injunction pending appeal from from Judgement of the Environment and Land Court of Kenya at Homa-Bay (G. Ong’ondo, J) Dated 6th December, 2023. in Homa-Bay ELC Misc. No. E005 OF 2023 Miscellaneous Application E005 of 2023 )
Ruling
1. This matter was listed before us today for hearing of a Notice of Motion dated 22nd January, 2024, in which the applicant seeks inter alia an order that:“Pending hearing and determination of the appeal, the Honourable Court be pleased to issue a temporary injunction restraining the 4th and 5th respondents, whether by themselves or throughtheir employees, servants, agents or any other person acting under their instruction, from evicting, taking possession, encroaching, removing and or destroying any perimeter fence/wall or fixture from the applicant’s parcel of land known as Central Kasipul/Kapchieng/1012 as it existed prior to the resurvey and alteration of the boundaries on 25th May, 2023”.
2. The application is supported by an affidavit sworn by the applicant, Damaris Ayomo Okumu, and on grounds stated on the face of the motion.
3. We note that none of the respondents has filed any reply to the application or any written submissions. Moreover, although all the parties were duly served with a hearing notice for the hearing of the motion, only learned counsel, Mr. Charles Mayiga for the applicant has attended Court for the hearing of the motion.
4. Mr. Mayiga has informed the Court that the applicant is aggrieved by the judgment of the ELC at Homabay delivered on 6th December, 2023, and has filed an appropriate notice of appeal. She is apprehensive that unless the interim order of injunction is granted, the 4th and 5th respondents may demolish her house and fence in accordance with a new boundary that has been purportedly established.
5. As the application is not opposed, we grant the application to the extent of issuing an injunction in favour of the applicant as against the 4th and 5th respondents to the effect that they shall maintain the status quo obtaining as of now, which is that the new beacons which are in place shall remain in place, and the applicant’s house, perimeter wall/fence which is also still in place shall remain in place until the appeal is heard and determined.Costs of the application shall abide the appeal.
DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF MARCH, 2024. HANNAH OKWENGU....................................JUDGE OF APPEALH. A. OMONDI..................................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb...................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR