[2016] KEELC 396 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

LAND CASE NO.237 OF 2015

SUSAN AWINO OWILI................................................................................................................................................PLAINTIFF

VERSUS

JAMES F.M. NJUGUNA ..................................................................................................................................1ST DEFENDANT

ROBERT STANLEY KIAMA……….…........…………………………………………………………………. 2ND PLAINTIFF

LAND REGISTRAR KISUMU ………..………..……………………………………………………………3RD DEFENDANT

THE HONUORABLE ATTORNEY GENERAL……..........…………………………………………………..4TH DEFENDANT

RULING

1. Susan Awino Owili, the Plaintiff, filed the notice of motion dated 15th September 2015 for temporary injunction order restraining James F.M. NjugunaandRobert Stanley Kiama, the 1st and 2nd Defendants respectively, from entering into, remaining in, trespassing upon or in any other manner interfering with her use and occupation of Kisumu/ Manyatta B/1318. She also prays for a restriction order over the said land and costs. The application is based on the eight grounds on the notice of motion and affidavit of Susan Awino Owili sworn on 15th September 2015. The application is opposed by the 1st and 2nd Defendant through the 1st Defendant’s grounds of opposition dated 7th December 2015, replying and further affidavit sworn on 13th February 2016 and 27th April 2016. It is also opposed by Robert Stanley Kiama through the replying and further affidavit sworn on 8th December 2015 and 29th January 2016.

2. The 2nd Defendant also filed the notice of motion dated 27th April 2016 seeking for among others to have an estate management firm appointed to manage the premises on Kisumu/Manyatta B/1318, an order for Plaintiff to account for the rent collected from 15th January 2015, vacant possession, permanent injunction, leave to amend his statement of defence and striking out of the Plaintiff’s suit for being an abuse of the courts process and failing to disclose a cause of action. The notice of motion is opposed by the Plaintiff through her replying affidavit sworn on 8th June 2016.

3. The parties appeared before the court on 16th May 2016 when directions were given among them that the two applications be heard together on the 11th July 2016. On that day, the court heard the Plaintiff in person and Mr. Njuguna, learned counsel for both the 1st and 2nd Defendants, on the two applications.

4. The issues for determination are as follows:

a) Who between the Plaintiff and the 2nd Defendant should remain on the suit property pending the hearing and determination of this suit.

b) Whether the 2nd Defendant has made a case for appointment of an estate management firm to collect rent of the premises on the suit land.

c) Whether the 2nd Defendant should get leave to amend his statement of defence.

d) Who meets the costs of each of the application.

5. The court has carefully considered the ground on each of the two applications, affidavit evidence by the parties and oral submissions by both sides and come to the following conclusions;

a) That the Plaintiff and 1st Defendant have had other court cases between them including Kisumu CM Children’s case NO.6 of 2006 and Kisumu H.C. Misc. Civil Application No.165 of 2009 where orders allowing the Plaintiff to stay on the house on the suit property among others were issued.

b) That land parcel Kisumu/Manyatta B/1318 was registered in the names of 1st Defendant on 12th April 1991. That the Plaintiff had lodged a caution on the suit land register on the 1st September 2010 which was later withdrawn on the 18th March 2015 which is the same date the property was transferred and registered in the name of the 2nd Defendant.

c) That in view of the finding in (a) and (b) above it is obvious that the transfer of the suit land from the name of the 1st Defendant to the 2nd Defendant was done without having the court order in Kisumu H.C. Misc. Civil Application No.165 of 2009 dated 26th January 2010 lifted. That the Plaintiff right drawn from the court order to use the land continued to be in force despite the change of ownership.

d) That even though the 2nd Defendant is the registered proprietor of the suit land, his title is under challenge and in view of the existing court order authorizing the Plaintiff to remain on the land, it is only fair that the Plaintiff do continue utilizing the suit property pending the hearing and determination of this suit.

e) That the permanent, mandatory injunction and management orders sought by the 2nd Defendant in the notice of motion dated 27th April 2016 are incapable of being considered at this stage as there is no existing suit by the 2nd Defendant on which they could be based. That it is only after his prayer for leave to amend his statement of defence to introduce a counter claim that the 2nd Defendant would have an existing suit on which such interlocutory prayers could be grounded.

f) That it is only fair that the 2nd Defendant be allowed to amend his statement of defence to introduce a counter claim to enable the court deal and determine all the issues relating to land parcel Kisumu/Manyatta B/1318 between the parties exhaustively.

g) That the 2nd defendant has not established in what manner the Plaintiff’s suit can be said to be wanting in cause of action or that it is an abuse of the court process. That all the parties should instead direct their energies to complying with Order 11 of Civil Procedure Rules so as to have the main suit heard and determined without undue delay.

6. That flowing from the foregoing the court find that the Plaintiff has established a prima facie case for issuance of temporary injunction orders as prayed in her notice of motion dated 15th September 2015. That the 2nd Defendant has partially succeeded in his notice of motion dated 27th April 2016 and for that matter, the costs in both applications should be in the cause. That the court therefore issues the following orders;

a) That pending the hearing and determination of this suit, the 1st and 2nd Defendants, either acting by themselves or agents are hereby restrained from interfering with the Plaintiff’s use and occupation of land parcel Kisumu/Manyatta B/1318.

b) That the 2nd Defendant is hereby granted leave to file and serve an amended statement of defence introducing a counterclaim within the next 30 days.

c) That all the parties herein do file and serve their list of documents, witness statements and generally, comply with Order 11 of Civil Procedure Rules within the next 60 days.

d) That the costs in respect of the notices of motion dated 15th September 2015 and 27th April 2016 be in the cause.

e) It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 26TH DAY OCTOBER 2016

In presence of;

Plaintiff Present

Defendant 1st and 2nd Defendants present

Counsel Mr. Odhiambo for Njuguna for 1st and 2nd Defendants.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

26/10/2016

26/10/2016

S.M. Kibunja J.

Oyugi court assistant

Plaintiff present

1st and 2nd Defendants present

Mr Odhiambo for Mr Njuguna for 1st and 2nd Defendants

The Plaintiff present in person.

Court: Ruling dated and delivered in open court in presence of the Plaintiff, 1st and 2nd Defendants and Mr Odhiambo for Njuguna for 1st and 2nd Defendants.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

26/10/2016