[2014] KEELC 432 (KLR)
The court held that since the dispute over land parcels Cherangany/Kapcherop/1029 and 1030 was already pending before it, the District Officer should not proceed to determine or mediate the matter unless both parties consented or the court expressly authorized such intervention. The court emphasized that while...
Source-derived case information.
- Citation
- [2014] KEELC 432 (KLR)
- Parties
- Plaintiff: Stephen Kiprotich Saina; Defendant: Francisco Okutoyi Ayot & Another
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 348 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Injunction
- Outcome
- application allowed
- Legal Topics
- Injunctive Relief, Pending Suit Principle, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kiprotich Saina
Plaintiff
Francisco Okutoyi Ayot & Another
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Injunction
Legal Issues
- 1 Whether the District Officer can proceed to determine a land dispute that is already pending before the court.
- 2 Whether the plaintiff is entitled to an order restraining the D.O from interfering with the subject matter of the suit.
Ratio Decidendi
The court held that since the dispute over land parcels Cherangany/Kapcherop/1029 and 1030 was already pending before it, the District Officer should not proceed to determine or mediate the matter unless both parties consented or the court expressly authorized such intervention. The court emphasized that while out-of-court settlements are encouraged, no party should be compelled to participate in mediation or threatened with adverse consequences for non-participation, particularly when the dispute is sub judice. The defendants having conceded to the application, and there being no valid reason to deny the plaintiff's request, the court granted the orders sought, restraining the D.O from...
Court Disposition
application allowed
Orders
- The District Officer, Kapcherop Division, is ordered to desist from interfering with the dispute unless both parties are agreeable to his mediation and unless authorized by court.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 348 OF 2013
STEPHEN KIPROTICH SAINA...........................................................PLAINTIFF
VS
FRANCISCO OKUTOYI AYOT & ANOTHER................................DEFENDANT
RULING
Before me is an application dated 22 November 2013 filed by the plaintiff. The main prayer is for an order to stop the District Officer (D.O), Kapcherop Division, from seeking to determine the subject matter of this suit for the reason that the same is pending in court. In this case, the plaintiff has claimed that he is the registered owner of the land parcel Cherangany/Kapcherop/1029 and 1030 and that the defendants have trespassed into the land parcel No. 1030. The suit was instituted on 13 June 2013.
In this application, it is the contention of the plaintiff that through letters dated 30 October and 14 November 2013, the D.O, wrote to the plaintiff advising that he would visit the site and resolve the dispute and asked the parties to come with their witnesses. It is averred that failure to attend may lead to the dispute being resolved without the input of the party who is absent. It is this action that the plaintiff seeks to stop for the reason that the matter is pending in court.
I need not make a lengthy ruling, for despite filing a response to the application, the defendants conceded to the application when the matter came up for inter-partes hearing. I also do not see why I should deny the plaintiff the prayers sought. That said, I am not necessarily averse to the provincial administration, or any person or entity for that matter, attempting to resolve matters within their areas of influence; any attempt at an out of court settlement is always welcome, if not encouraged. However, no party ought to be compelled or threatened by consequences if he/she is not comfortable with the mediation process, which appears to be the case in this matter. This is especially so when the matter is pending in court.
For the above reasons, the application dated 22 November 2013 is allowed and I order the D.O to desist from interfering with the dispute unless both parties are agreeable to his mediation and unless authorized by court. I however make no orders as to costs.
DATED AND DELIVERED AT ELDORET THIS 27TH DAY OF MARCH 2014
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET.
Delivered in the presence of:
Mr. C.F. Otieno holding brief for M/s Cheptarus for plaintiff
Defendants – present acting in person