[2017] KEELC 1281 (KLR)
The court found that the Plaintiff is the registered proprietor of the suit land and has produced documentary evidence of ownership. The Defendants failed to challenge the Plaintiff's title or the surveyor's report, which established that their homesteads are outside the suit land. As such, the Defendants did not...
Source-derived case information.
- Citation
- [2017] KEELC 1281 (KLR)
- Parties
- Plaintiff: Prof. Shellemiah Okoth Keya; Defendant: Joanes Hongo; Defendant: Bonface Owiti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application for Temporary Injunction
- Outcome
- application dismissed
- Legal Topics
- Temporary Injunctions, Ownership Disputes, Land Registration, Title Indefeasibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prof. Shellemiah Okoth Keya
Plaintiff
Joanes Hongo
Defendant
Bonface Owiti
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application for Temporary Injunction
Legal Issues
- 1 Whether the Defendants have established a prima facie case with a probability of success to warrant the grant of a temporary injunction at this stage.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The court found that the Plaintiff is the registered proprietor of the suit land and has produced documentary evidence of ownership. The Defendants failed to challenge the Plaintiff's title or the surveyor's report, which established that their homesteads are outside the suit land. As such, the Defendants did not demonstrate a prima facie case or any threat to their homesteads that would justify the issuance of a temporary injunction. The court further held that unless the Plaintiff's title is successfully challenged in accordance with the law, he is to be regarded as the absolute and indefeasible owner of the suit land. Consequently, the application for a temporary injunction was...
Court Disposition
application dismissed
Orders
- The Defendants' notice of motion dated 16th December 2016 is dismissed with costs to the Plaintiff.
- The interim order of injunction is vacated.
Full Case Text
Judgment text and source record
46 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KISUMU
ELC CASE NO.60 OF 2017
[FORMERLY HIGH COURT CIVIL CASE NO.135 OF 2012]
PRO.SHELLEMIAH OKOTH KEYA..............PLAINTIFF
VERSUS
JOANS HONGO.................................1ST DEFENDANT
BONFACE OWITI……………..……2ND DEFENDANT
RULING
1. Through the notice of motion dated 16th December 2016, Joanes Hongo and Bonface Owiti, the Defendants, prays for an order of temporary injunction restraining Professor Shellemiah Okoth Keya, the Plaintiff, by himself or agents “from fencing, continuing with fencing, blocking access, alienating, demolishing homes, harassing, terrorizing the Applicants’ family and interfering with the Applicants’ interest in their ancestral land, measuring approximately 6 acres and more specifically the Applicants’ homesteads, pending the hearing and finalization of the main suit.” The Defendants also prays for costs. The notice of motion is based on the four grounds on its face marked (i) to iv) and is supported by the affidavit sworn by 1st Defendant on the 16th December 2016.
2. The notice of motion is opposed by the Plaintiff through the grounds of opposition dated 12th January 2017 and replying affidavit sworn by the Plaintiff on the 10th February 2017.
3. The temporary injunction order pending the interpartes hearing was granted on the 20th December 2016 and severally extended.
That on 21st February 2017 the court gave directions on filing of written submissions. The counsel for the Plaintiff filed theirs dated 11th March 2017, on the 13th March 2017, while that for the Defendants filed theirs dated 27th March 2017 on the same date.
4. The following are the issues for the court’s determination;
a. Whether the Defendants have made a prima facie with probability of success for temporary injunction to issue at this stage.
b. Who pays the costs.
5. The court has after carefully considering the grounds on the notice of motion, grounds of opposition, affidavit evidence, submissions by both counsel concluded as follows;
a. That land parcel No.15329 Kisumu Municipality, measuring 2. 999 hectares was allocated to the Plaintiff vide Grant No.I.R – 126283 on the 1st December 1990.
b. That the same land was allocated to one Phillip Ochieng Otieno on the 1st June 1997 under Grant No. I.R.91141.
c. That even though the said Phillip Ochieng Otieno is not a party to this proceedings, the existence of the documents of ownership in his name of the same land the Plaintiff claims cannot be ignored as the registration in his favour came about seven (7) years after the Plaintiff’s registration.
d. That the Plaintiff has exhibited to the replying affidavit a surveyors report showing that the houses (structures) in question are outside the suit land. That taking that the said houses are the homesteads that the Defendants sought to be protected through an order of injunction, and as the Defendants have not challenged or controverted the surveyor’s findings, the court finds that the Defendants have failed to establish the existence of any threat to their homesteads or access thereto that would require an order of injunction to be issued.
e. That as between the Plaintiff and the Defendants, the former has exhibited the document of ownership of the suit land and unless his ownership is successfully challenged in accordance with Article 40 of the Constitution and Section 26 of the Land Registration Act No.3 of 2012, the court is obligated to take him as the absolute and indefeasible owner of the suit land.
6. That having found as above, the court finds no merit in the defendants’ notice of motion dated 16th December 2016 and the same is dismissed with costs. The interim order is hereby vacated.
Orders accordingly.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 24TH DAY OF OCTOBER 2017
In presence of;
Plaintiff Absent
Defendants 1ST present
Counsel Mr. Osongo for the Plaintiff
Mr. Anyul for the Defendants
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
2/10/2017
24/10/2017
S. M. Kibunja Judge
Oyugi court assistant
Plaintiff absent
1st Defendant present
Mr. Anyul for the Applicant
Mr. Onsongo for the Respondent
Court: The ruling dated and delivered in open court in the presence of Mr. Anyul and Onsongo for the Plaintiff/Respondent and Defendants/Applicants respectively.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
2/10/2017