George Timothy Opande v Ezekiel M. Okemwa, Olang Lynda Adede & Attorney General [2017] KEELC 3272 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISUMU

ELC CASE NO.883 OF 2015

[FORMERLY HIGH COURT CIVIL SUIT NO.140 OF 2010]

DR. GEORGE TIMOTHY OPANDE..........................................PLAINTIFF

VERSUS

EZEKIEL M. OKEMWA.................................................1ST DEFENDANT

OLANG LYNDA ADEDE............................................2ND DEFENDANT T

ATTORNEY GENERAL................................................3RD DEFENDANT

RULING

1. Dr. George Timothy Opande,the plaintiff, filed the notice of motion dated 12th July 2016 seeking to restrain Olang Lynda Adede, the 2nd defendant, from wasting, destroying or degrading or interfering with his quiet enjoyment, possession and occupation of land parcel Kisumu/Konya/36, the suit property, pending the hearing and determination of this suit. The application is based on the nine grounds on its face and supported by the plaintiff’s affidavit sworn on the 12th July 2016.

2. The application is opposed by the 2nd defendant through her replying affidavit sworn on the 27th September 2016.

3. The application was heard on 28th November 2016. The counsel for the 2nd Defendant made his submissions first as the Plaintiff and his counsel had not arrived in court when the hearing commenced. The court also heard the submission by the Plaintiff after his counsel failed to attend court.

4. The following are the issues for the court’s determination;

a. Whether the Plaintiff has established a prima facie case with a probability of success for temporary injunction to issue at the interlocutory stage.

b. What orders to issue.

c. Who pays the costs.

5. The court has considered the grounds on the notice of motion, affidavit evidence, submissions tendered and come to the following conclusions;

a. That from the documents of title availed to this court, land parcel Kisumu/Konya/36 got registered in the name of the Plaintiff on the 23rd July 2019, while Kisumu/Konya/34 got registered in the name of the 2nd Defendant on 23rd June 2010.

b. That land parcels Kisumu/Konya/36 and 34 are indicated to be 0. 25 and 0. 11 hectares respectively.

c. That the Land Registrar’s report dated 3rd May 2012, obtained through the court order of 1st March 2012 confirms the existence of a boundary dispute involving the two parcels among others, and recommended that it “be resolved by amending the map to suit the current ground position as per mutual agreement entered between proprietors of KSM/Konya/34 and KSM/Konya/33. ” That however, there is no indication as to whether the report’s recommendation was adopted as an order of the court and or implemented.

d. That in view of the finding in (c) above, and noting that the portion of land where the 2nd Defendant was carrying on developments is claimed by the Plaintiff as part of his land, it is only fair that any further developments on the disputed portion be stopped pending the determination as to whether the portion falls on parcel Kisumu/Konya/34 or 36.

6. That flowing from the foregoing the court finds merit in the notice of motion dated 12th July 2016 and is allowed in terms of prayer 3 pending hearing and determination of the suit. The costs will be in the cause.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 29TH DAY OF MARCH 2017

In presence of;

Plaintiff Present

Defendants Absent

Counsel M/S Odhong for the Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/3/2017

S.M. Kibunja Judge

Oyugi court assistant

Plaintiff present

M/S Odhong for the Plaintiff

Court: The ruling dated and delivered in open court in presence of

M/S Odhong for the Plaintiff and the Plaintiff.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

29/3/2017