Gati & 2 others v Mwita & 7 others [2024] KEELC 6297 (KLR)

Gati & 2 others v Mwita & 7 others (Environment & Land Case E005 of 2023) [2024] KEELC 6297 (KLR) (24 September 2024) (Ruling)

Neutral citation: [2024] KEELC 6297 (KLR)

Republic of Kenya

In the Environment and Land Court at Migori

Environment & Land Case E005 of 2023

GMA Ongondo, J

September 24, 2024

Between

Francis Nyaihembe Gati

1st Plaintiff

John Chacha Mogaya

2nd Plaintiff

Anes Alois Marwa

3rd Plaintiff

and

Francis Mikwabe Mwita

1st Defendant

Prician Bokobora Mwita

2nd Defendant

Mark Mwita Maroa

3rd Defendant

Kleofas Marwa Mwita

4th Defendant

Morwani Joseph Okindo

5th Defendant

Peter Matiko Rimo

6th Defendant

Alfred Ogachi Kenyanya

7th Defendant

Land Registrar Kuria

8th Defendant

Ruling

1. The instant ruling is in respect of an application by way of a Notice of motion dated 9th July 2024 by the three plaintiffs/applicants through M/S Edward Kisia and Associates Advocates for interim preservation order over the suit land Reference No. Bugumbe/Isebania/344 pending the outcome of this suit.

2. Mr Kisia learned counsel for the applicant informed the court that the respondents/defendants were duly served as revealed in the affidavit of service sworn on 22nd December 2023 and 22nd February 2024. He has implored the court to grant prayer No. 3 on the face of the application.

3. Clearly, there is no response to the application herein. The respondents were made aware of the existence of the application and the suit but opted not to respond to the same; see Ogada-vs-Mollin 2009) KLR 620.

4. It is noteworthy that the applicants commenced this suit by way of a plaint (Fast Track) dated 3rd November 2023 seeking the orders infra;-i.A declaration that Johana Mwita (deceased) held the suit land measuring approximately 10. 40 HA in trust and for benefit of his four brothers who all deceased and dependants.ii.A declaration that the Plaintiffs right over the suit land and resultant subdivisions are adverse to the rights of the 1st to 7th defendants all-inclusive over the same.

5. This court has the mandate to grant interim preservation orders as provided for under section 13 (7) (a) of the Environment and Land Court Act 2015 (2011).

6. In the circumstances, the applicants are deserving of an order of status quo over the suit land worthwhile.

7. Thus, the application is determined in terms of status quo to be maintained over the suit land pending the outcome of this suit. In particular, the parties shall not sell, lease, charge, transfer or subdivide the suit land during the pendency of the suit.

8. It is so ordered.

DATED AND DELIVERED AT MIGORI THIS 24th DAY OF SEPTEMBER 2024G. M. A. ONGONDOJUDGEIn Present of;-Mr E. Kisia learned counsel for the applicants/ PlaintiffsTom- Court Assistant