[2018] KEELC 1266 (KLR)
The court found that the applicant failed to demonstrate any new material evidence or sufficient grounds to justify the setting aside or variation of the orders issued on 16th November, 2017. The court emphasized that the applicant's absence at the hearing, despite proper service, and the lack of credible new...
Source-derived case information.
- Citation
- [2018] KEELC 1266 (KLR)
- Parties
- Plaintiff: Samwel Kamsingi Ochora; Defendant: Musyoka Masilu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 568 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application to Set Aside/vary Interim Orders
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Interlocutory Injunctions, Setting Aside Orders, Ownership Disputes, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kamsingi Ochora
Plaintiff
Musyoka Masilu
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Set Aside/vary Interim Orders
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds to warrant the setting aside or variation of the court's orders issued on 16th November, 2017.
- 2 Whether the applicant has presented new material evidence justifying the discharge of the orders.
- 3 Whether the issue of ownership of the suit property should be determined at the interlocutory stage.
Ratio Decidendi
The court found that the applicant failed to demonstrate any new material evidence or sufficient grounds to justify the setting aside or variation of the orders issued on 16th November, 2017. The court emphasized that the applicant's absence at the hearing, despite proper service, and the lack of credible new evidence meant the threshold for setting aside the orders was not met. The court further held that the substantive issue of ownership of the suit property is a matter for determination at a full hearing, not at the interlocutory stage. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 15th December, 2017 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 568 OF 2017
SAMWEL KAMSINGI OCHORA................................PLAINTIFF
-VERSUS-
MUSYOKA MASILU.................................................DEFENDANT
RULING
The Application before me is the Defendant’s/Applicant’s Notice of Motion dated 15th December, 2017 seeking for the court to vary, discharge and or set aside its orders of 16th November, 2017 which Application is brought under order 40 Rule 4 of CPR. The Application is based on the grounds that the Applicant is the legal allotee of the suit property and that the orders will prejudice the Applicant over the occupation and use of the suit land LR Kilgoris/Majengo/63.
The Application was supported by the Affidavit of the Applicant who deponed that he has done extensive developments on the property and that he had filed his replying affidavit to the application in which he had annexed photographs of the developments.
The Application was opposed by the Respondent who had filed a replying affidavit where he states that the Applicant despite service of the Application dated 18th October, 2017 failed and or ignored to respond to the same and that he failed to appear in court for the hearing of the Application. He further averred that the documents annexed to the replying affidavit are not authentic and the Applicant does not show the threshold for setting aside.
I have read the application before me and the submissions made by counsel and the reasons for variation, setting aside of the orders made include the emergence of material evidence that was with the knowledge among others.
In the instant case when the matter was fixed for hearing the Applicant was not present in court and despite the court satisfying itself that there was proper service on the Respondent/Applicant the court allowed the Application as prayed. The Applicant mounted the instant Application with a view to set aside those orders and having read the Application I find that the Applicant has not demonstrated any new material evidence to vacate and vary those orders. In any event the issue of who is the legal owner of the suit property is one that will be determined at a full hearing where the parties will have the opportunity to place all material relevant to the matter before the court.
The upshot of the above is that the application dated 15th December, 2017 lacks merit and I dismiss the same with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 23rd day of October, 2018
Mohammed Noor Kullow
Judge
23/10/18
In the presence of:-
Mr Abobo for the applicant/defendant
N/A for the Respondent
CA:Chuma
In the presence of:-