[2023] KEELC 15804 (KLR)
The court determined that in order to preserve the subject matter of the appeal and prevent further disputes or prejudice to either party, it was necessary to maintain the access road as previously ordered by the lower court, close the illegal diversion created by the appellant, and restrain both parties from...
Source-derived case information.
- Citation
- [2023] KEELC 15804 (KLR)
- Parties
- Appellant: Michael Okworo Wanga; Respondent: Joseph Omol Kowiti; Respondent: Margrat Achieng Otieno
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E059 of 2022
- Procedural Posture
- Environment and Land Appeal / Ruling on Interlocutory Application (notice of Motion) Pending Appeal
- Outcome
- Notice of motion marked as compromised; interlocutory orders granted pending appeal.
- Judges
- GMA Ongondo
- Legal Topics
- Access Road Disputes, Interlocutory Injunctions, Land Parcel Boundaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Okworo Wanga
Appellant
Joseph Omol Kowiti
Respondent
Margrat Achieng Otieno
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Interlocutory Application (notice of Motion) Pending Appeal
Legal Issues
- 1 Whether the access road opened by court order should remain open pending appeal.
- 2 Whether the diversion created by the appellant should be closed pending appeal.
- 3 Whether cultivation should be restrained on the disputed parcel pending appeal.
Ratio Decidendi
The court determined that in order to preserve the subject matter of the appeal and prevent further disputes or prejudice to either party, it was necessary to maintain the access road as previously ordered by the lower court, close the illegal diversion created by the appellant, and restrain both parties from cultivating the disputed parcel of land pending the hearing and determination of the appeal. The notice of motion was marked as compromised by consent, and costs were ordered to abide the outcome of the appeal. The court exercised its discretion to grant interlocutory orders to maintain the status quo and ensure that the appeal would not be rendered nugatory.
Court Disposition
Notice of motion marked as compromised; interlocutory orders granted pending appeal.
Orders
- The access road initially opened by the court order in Homa-Bay Chief Magistrate’s court ELC Case No 49 of 2020 passing through LR Nos Gem/Kenyanjwa/682 and Gem/Kanyanjwa/1052 to remain open.
- The illegal diversion that was opened by the appellant in LR No Gem/Kanyanjwa/1052 to be closed pending the hearing and determination of this appeal.
Full Case Text
Judgment text and source record
19 paragraphs
Wanga v Kowiti & another (Environment and Land Appeal E059 of 2022) [2023] KEELC 15804 (KLR) (27 February 2023) (Ruling)
Neutral citation: [2023] KEELC 15804 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal E059 of 2022
GMA Ongondo, J
February 27, 2023
Between
Michael Okworo Wanga
Appellant
and
Joseph Omol Kowiti
1st Respondent
Margrat Achieng Otieno
2nd Respondent
(Appeal from the ruling of the Chief Magistrate’s Court, Homa Bay ELC No. 49 of 2020 delivered on the 30th November, 2022)
Ruling
1. After hearing Mr Nyakwamba and Ms Apondi for the appellant and the respondent, in regard to a notice of motion dated December 13, 2022, respectively, it is hereby ordered that:a.The access road initially opened by the court order in Homa-Bay Chief Magistrate’s court ELC Case No 49 of 2020 passing through LR Nos Gem/Kenyanjwa/682 and Gem/Kanyanjwa/1052, to remain open.b.The illegal diversion that was opened by the appellant in Lr No Gem/kanyanjwa/1052, to be closed pending the hearing and determination of this appeal.c.A parcel of land falling in Gem/Kanyanjwa/1052 between the access road and the illegal diversion to remain uncultivated by either parties herein pending the hearing and determination of this appeal.d.In that regard, the notice of motion dated December 13, 2023 herein, be marked as compromised accordingly.e.Costs of the said motion to abide and the outcome of this appeal.f.It is so ordered.
DELIVERED AND DATED AT HOMABAY THIS 27TH DAY OF FEBRUARY 2023. GMA ONG’ONDOJUDGEPRESENT.Mr Nyakwamba, learned counsel for the applicantMs Apondi, learned counsel for the respondent.Mutiva, Court Assistant.