Khadondi v Charo [2025] KEELC 4 (KLR)

Khadondi v Charo (Environment & Land Case 86 of 2013) [2025] KEELC 4 (KLR) (15 January 2025) (Ruling)

Neutral citation: [2025] KEELC 4 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 86 of 2013

FM Njoroge, J

January 15, 2025

Between

Patrick Khadondi

Plaintiff

and

Japhet Noti Charo

Defendant

Ruling

1. The defendant’s application coming up for determination before this court is dated 4th August 2024 in which he has sought the following prayers:a.…………………Spent;b.A temporary order be issued restraining the plaintiff /respondent by himself or by agent from carrying out destruction, demolition, or construction, subdivision, selling and/or leasing the suit property known as Portion Number 14034 alias Plot 9 Sabaki pending the filing of record of appeal, hearing and determination of the appeal;c.That the OCS and OCPD Malindi to ensure compliance of (sic) the orders herein.d.That costs to (sic) this application be provided for.

2. The application is based by the grounds appearing on its face and in the supporting affidavit of the applicant dated 4/8/2024. The grounds are as follows: judgment was delivered on 8/11/2023 in the present suit; a notice of appeal was filed on 15/11/2023 and certified copies of proceedings were also requested on the same day, which the defendant is yet to be supplied with; the plaintiff respondent in the meanwhile has began demolishing the defendant’s structures while altering others; further he has threatened to subdivide the suit land and dispose of portions to third parties.

3. The defendant filed a replying affidavit dated 14/8/2024. He deponed that upon judgment a permanent injunction was issued to the defendant and his agents, and the applicant is already in contempt for not adhering to the said orders. He further states that one house exhibited by the applicant is his, and he was compelled to repair the roof as it was leaking, and he had to expand the gate to enable a vehicle bring the necessary materials in; that he has no intention of dividing the suit and sale thereof; that he has lived on the property for 30 years and he relies on it for his livelihood from rents; that he has not demolished any structure on the suit land; that the applicant, without any particulars to prove ownership, has been collecting rent from premises on the suit property for 10 years and is unlikely to have any such documents even now.

Determination. 4. I have considered the application and the response. The issue that arises for determination is whether an order restraining the plaintiff from interfering with the suit land should issue.

5. In the judgment of this court dated 8/11/23, it found that the plaintiff is the legal owner of the suit property, and that the defendant and his agents should vacate the property within 45 days. A permanent injunction was issued by this court against the defendants restraining them from in any manner interfering with the suit property or the plaintiff’s quiet possession thereof. The present application also seeks an injunction, albeit temporary, against the plaintiff to restrain him from dealing with the suit property.

6. Much as the applicant is entitled to appeal against the judgment of this court, this court must consider the specifics of the final orders granted in the judgment before it allows an application such as the one before it.

7. If the orders of injunction are given by this court as sought by the applicant, they would be poised to operate against a permanent injunction of this very court issued against the defendant and his agents in its final decision adjudicating the rights of the parties.

8. In this court’s view, it is not meet for a court to issue two diametrically opposed orders one after another as it has already made up its mind as to who is the legal owner of the suit land. Besides, this court is not certain that the applicant has any appeal that has any chances of success as no draft memorandum of appeal has been attached to the supporting affidavit. As the plaintiff states, and I agree with him entirely, there is no indication that the defendant who failed to produce sufficient evidence at the trial has anything that would change the final verdict of this court on appeal.

9. For the foregoing reasons I find that the application dated 4/8/2024 lacks merit and it is hereby dismissed with costs to the plaintiff. For the avoidance of doubt, all interim orders granted after the filing of the now dismissed application are hereby vacated.

RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 15TH DAY OF JANUARY 2025. MWANGI NJOROGEJUDGE, ELC, MALINDI