[2024] KEELC 5042 (KLR)
The court found that the application for a temporary injunction was unopposed, as the defendants, though served and having entered appearance, failed to file any response. The court held that the plaintiff had established a prima facie case for the preservation of the suit land's boundaries and prevention of...
Source-derived case information.
- Citation
- [2024] KEELC 5042 (KLR)
- Parties
- Plaintiff: Philip Otieno Owuor; Defendant: The Honourable Attorney General; Defendant: The Land Registrar Rachuonyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E006 of 2024
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed; temporary injunction granted as prayed.
- Judges
- GMA Ongondo
- Legal Topics
- Interlocutory Injunctions, Land Boundaries, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Otieno Owuor
Plaintiff
The Honourable Attorney General
Defendant
The Land Registrar Rachuonyo
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from interfering with the boundaries of the suit land pending determination of the suit.
- 2 Whether the 2nd defendant should be restrained from issuing orders for destruction of buildings or plantations on the suit land using alleged illegal or fraudulent documents.
Ratio Decidendi
The court found that the application for a temporary injunction was unopposed, as the defendants, though served and having entered appearance, failed to file any response. The court held that the plaintiff had established a prima facie case for the preservation of the suit land's boundaries and prevention of destruction of buildings or plantations pending the hearing and determination of the suit. The court emphasized the importance of maintaining the status quo to prevent irreparable harm and to ensure justice is served. The orders sought were therefore granted as the application was meritorious and unchallenged.
Court Disposition
Application allowed; temporary injunction granted as prayed.
Orders
- A temporary injunction is issued restraining the defendants, their agents or servants from causing damage on the boundaries of land reference number Kabondo/Kodumo East/293 pending hearing and determination of the suit.
- The 2nd defendant is restrained from giving any order of destruction of any building or plantation on the suit land measuring 18.1 acres using illegal or fraudulent documents pending hearing and determination of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
Owuor v Attorney General & another (Environment & Land Case E006 of 2024) [2024] KEELC 5042 (KLR) (2 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5042 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment & Land Case E006 of 2024
GMA Ongondo, J
July 2, 2024
Between
Philip Otieno Owuor
Plaintiff
and
The Honourable Attorney General
1st Defendant
The Land Registrar Rachuonyo
2nd Defendant
Ruling
1. This ruling is in respect of an application by way of a Notice of Motion dated 23rd May 2024 by the plaintiff/applicant through S M Sagwe and Company Advocates for two principal orders as follows;a.A temporary injunction against the respondents, restraining them, their agents and or servants from causing damage on the boundaries of the suit land reference number Kabondo/Kodumo East/293 which is intact by features of Cyprus trees, white gum trees and sisal plant pending the hearing and determination of this suit.b.The 2nd defendant/respondent be restrained from giving any order of destruction of any building plantation on the suit land measuring 18. 1 acres in area using illegal and fraudulent documents pending the hearing and determination of this suit.c.The costs of the application be provided for.
2. The anchorage of the application is the applicant’s supporting affidavit of nine paragraphs and copies of the accompanying documents inclusive of land certificate and register of the suit land. Also, the application is based on grounds 1 to 4 set out on it’s face. The applicant’s lamentation in part is that the boundaries of the suit land are intact and the same be maintained pending the outcome of this suit for justice to prevail.
3. It is trite law that a party to a case must be made aware of the existence of the same to enable the party to defend it or not; see Ogada-vs-Mollin (2009) KLR 620.
4. The defendants/respondents were duly served with the application as disclosed in the affidavit of service sworn on 28th June 2024 by Peter Cherere Sagwe, an authorised process server of this court.
5. The respondents filed a memorandum of appearance dated 3rd June 2024. However, they failed to file any reply to the application herein.
6. Indeed, the respondents were accorded an opportunity to respond to the application in the spirit of Articles 48 and 50 (1) of the Constitution of Kenya 2010; see also James Kanyiita Nderitu and another –vs-Marios Philotas Gikhas and another (2016) eKLR.
7. Mr Sagwe learned counsel for the plaintiff/applicant has therefore, urged the court to find the application unopposed and grant the orders sought therein in the interest of justice.
8. Clearly, the application is unchallenged and meritorious.
9. Thus, the application is allowed in terms of orders (c) and (d) sought therein and as stated in paragraph 1 (a) and (b) hereinabove.
10. The costs of the application be in the cause.
11. Mention of the suit on 30th September 2024 and the defendants/respondents be served accordingly.
VIRTUALLY DATED AND DELIVERED AT HOMA BAY THIS 2ND DAY OF JULY 2024. GEORGE M A ONG’ONDOJUDGEPRESENT;Mr. S M Sagwe learned counsel for the plaintiff/applicantMr. Luanga, court assistant