Fredrick Atanas Ashiono v Aggrey Sevensson Lihanda [2014] KEHC 2561 (KLR)

REPUBLIC OF  KENYA

IN THE HIGH COURT AT KAKAMEGA

LAND &  ENVIRONMENT CASE NO:  48  OF  2013

FREDRICK ATANAS ASHIONO...............................................PLAINTIFF

VERSUS

AGGREY  SEVENSSON LIHANDA......................................DEFENDANT

R U L I N G

The application dated 10/12 2013 seeks an order of stay of the eviction order herein and setting aside the consent order recorded on 4/9/2013.  Mr. Mukavale, counsel for the applicant submitted that the defendant is not in occupation of plot numberISUKHA/KAMBIRI/1671.  He however entered into a consent to have himself evicted.  The end result is that it is the applicant who was not a party to the suit who is now being evicted.  The applicant lives on the suit land with her children and mother in law.

The plaintiff filed a replying affidavit sworn on 4th March, 2014. He contends that the suit land was old to the defendant by the applicant’s husband. He bought the land from the defendant. He has annexed a copy of his title deed issued on 26/10/2011.

I have read the pleading herein and the current application and the replying affidavit.  The defendant filed a statement of admission that is not dated but was filed on 20th February 2013.  The defendant contends in his statement that he is ready to vacate the suit land immediately.  A consent was recorded on 4/9/2013 before the Deputy Registrar. That consent led to the eviction order. It is clear that the consent was not adopted as an order or this court.  It is also clear that the defendant does not reside on the suit land.

The applicant contends that her husband with whom they have nine children disappeared   and his whereabouts is unknown.  The defendant alleges to have bought the suit land from the applicant’s husband.  Since the applicant is in occupation of the suit land and did not consent to the eviction order, I do find that her application is merited and the same is granted as prayed.  The consent judgment is hereby set aside.  The applicant is hereby enjoined in this suit and the eviction order I also set aside.  The defendant to file her defence and matter to proceed for full hearing before the Land and Environment Court.

Dated, delivered and signed at Kakamega this 16th day of September  2014.

SAID  J.  CHITEMBWE

JUDGE