Francis Tobias Akello (Suing As Administrator Of Matayi Akelo Oloo) v Gabriel Onyanchi Sundia [2015] KEELC 392 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 44 OF 2015.

FRANCIS  TOBIAS  AKELLO………PLAINTIFF/APPLICANT

(Suing  as administrator of MATAYI AKELO  OLOO)

VERSUS

GABRIEL  ONYANCHI SUNDIA…………DEFENDANT/RESPONDENT

R U L I N G

1.         FRANCIS TOBIAS AKELLOhereinafter  referred to as the Applicant, suing as the administrator of the estate of  MATAYI AKELO OLOO, filed  the Notice of Motion dated 8th May, 2015  seeking for temporary  injunction against Gabriel Onyanchi Sundia, hereinafter referred to  as Respondent,  over parcel  Samia/Luanda-Mudoma/3752. The application is supported by the affidavit headed ‘’Affidavit Statement of the Plaintiff.’’ sworn by the Applicant on 8th May, 2015.

2.       The Respondent opposed the application and filed the grounds of opposition dated 22nd May, 2015.

3.         The application came up for hearing on 28th May, 2015 and Mr. Juma and Mr.Jumba Advocates, for the Applicant and Respondent respectively, presented their rival submissions.

4.         The court has considered the contents  of the Applicant’s  affidavit, Respondent’s grounds  of opposition and rival  submissions  by counsel and find as follows;

That the notice  of motion  was filed simultaneously with  the plaint dated 8th May, 2015.

That the copy of the title  for parcel Samia/Luanda Mudoma/3752 annexed  to the Applicant’s  affidavit  shows that the suit land was a combination of plot numbers 1369, 2203, 2204, 2205 and 2290 and was registered  in the Applicant’s  name on 5th December, 2014 and title deed issued on 13th April, 2015.

That  the Applicant  had filed Busia Succession  Cause No. 120 of 2014  and was appointed  the administrator  of the estate of  Matayi Akelo Oloo on 15th July, 2014.

That  the Applicant’s  contention that the suit land comprises  the estate of Matayi Akelo Oloo  cannot  be confirmed  without the court being  presented  with the requisite documents like copy of the register of the parcels combined to make the suit land and the certificate  of confirmation of grant.

That the fact the affidavit supporting the notice of motion is headed ‘’Affidavit  statement of the Plaintiff’’ does not suffice to make the court  conclude  that the application  is without a supporting affidavit. It would have been however desirable that the affidavit was properly headed as it was drawn and filed  through a counsel and not a party. The  misleading  heading  of the affidavit  is a technicality  and  this court is required  under Article 159 (2)  (d)  of the constitution to administer  justice without  undue regard to procedural  technicalities.

That further to the finding in (a) above, the Applicant’s claim that the suit land is party of the estate of the late Matayi  Akelo Oloo has not been disputed. The court will take it that the Applicant got registered with the suit land on transmission. That between the Respondent and the Applicant, the court  finds the Applicant has  a better right to the suit land and it is only fair the Respondent’s use  of the land be restricted  to the use and developments already undertaken by the time this suit was filed.  That for the foregoing  reasons , the court  finds that  the Applicant has  satisfied the grounds set out in Giella versus Cassman Brown case  by establishing  a primia facie case. It  is also more convenient to restrict the Respondent’s use of the land to that already  existing pending the hearing  and determination of this suit.

5.         That having found as above, the court allows the application dated 8th May, 2015 in the following terms;

That temporary injunction is hereby issued restraining the Defendant, his agents  and servants  and all those claiming  from him  from any further developments on land parcel Samia/Luanda/3752 until  this suit is heard and determined.

The costs of this application will be in the cause.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON ……30TH………DAY OF……JUNE,.2015.

IN THE PRESENCE OF;

PLAINTIFF/APPLICANT…..............................…ABSENT

DEFENDANT/RESPONDENT……...................…ABSENT

COUNSEL. MR. JUMA AND MR. JUMBA FOR APPLICANT AND RESPONDENT RESPECTIVELY.

JUDGE