Kiminisi Ole Ngenda v Matayia Kantai & Neiyo Kantai [2018] KEELC 2221 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAROK

ELC CAUSE NO. 366 OF 2017

FORMERLY KISII ELC NO. 150 OF 2013

KIMINISI OLE NGENDA.........................................................PLAINTIFF

VERSUS

MATAYIA KANTAI ........................................................1ST DEFENDANT

NEIYO KANTAI.............................................................2ND DEFENDANT

RULING

The Application before me is the Notice of Motion dated 11th November, 2017 brought under the provision of section 1A,3,3A and 63( C) of the Civil Procedure Act and Order 40 Rule (1) and order 51Rule (1) of the Civil procedure Rules where the Applicants seek pending the hearing and  determination of the suit herein an order of injunction do issue restraining the Defendant by himself, and/or employees from grazing animals, cultivating or disposing or in any manner dealing with the Applicants use of LR TRANS MARA/MOITA/503 and in the alternative an order of status quo which obtained as at 28th June, 2012 when Kisii HCCC No. 226 of 2012 (OS) which suit was consolidated with the suit herein be maintained pending the hearing and determination of this suit.

The Application was based on the ground that the Applicants had filed a suit on 28th June, 2012 at Kisi High Court claiming ownership of LR Trans Mara/Moita/503 by way of adverse possession against John R. Mutethia who was the registered owner but never took possession.

The suit land herein was sold to the Respondent by John R. Mutethia but he could not take possession since the Applicants were in exclusive possession and that the Respondent has been attempting to evict the Applicants alleging that they have refused the Respondent from taking possession and prosecute an exparte Judgement in Kisii HCCC No. 150 of 2015 has been set aside and the suit transferred to the court for hearing and in view of the foregoing the Respondent has been trying to evict the Applicants from the suit land.

The Application was further supported by the Affidavit of the 1st Applicant who averred that he has been living exclusively on the suit land since 1981 and that his father who also lived on the land is buried thereon.  He further avers that the suit land was sold to the present owner on 21st November, 2012 without their knowledge and he wants to evict them from the land.

The Applicant further contends that the exparte Judgment that the Applicant obtained which he wanted to use to evict them has since been set aside and despite the above the Respondent has been forcefully grazing his cattle on the suit land.

The Application was opposed by the Respondent who filed a replying affidavit.  The Respondent avers that on 21st November, 2012 he entered into a sale agreement for the purchase of the suit land from one John Renson Mutethia for a consideration of kshs. 1,800,000/- and that the aforesaid John Renson Mutethia caused the suit to be transferred to him and he took possession of the suit property.

The Respondent stated that sometime in February 2013 the Defendants/Applicants herein trespassed on the suit land and commenced cultivating and that the Applicants act aforesaid has deprived him of the use of the land.

I have read the application before me and the issue for determination before me is whether the Applicant has established the grounds for the grant of an order of injunction.  The Applicant alleges that he has been in occupation and possession of the suit land since 1981 and that his father is buried thereon.  The Respondent also contends that he purchased the land on 21st November, 2012 and it was only in February, 2013 that the Applicants trespassed on the land.

From the pleading filed and the various contradictive portion that the parties have shown I find that the issues raised as issues that can only be determined at full hearing where evidence will be taken.  In the meantime I will take the safe option that the status quo in the matter as to the date of the delivery of this Ruling herein be maintained.

DATED, SIGNED and DELIVERED in open court atNAROKon this27thday ofJuly, 2018.

Mohammed Noor Kullow

Judge

27/7/18

In the presence of:

Mr Sagwe holding brief for Mr. Ogutu for the Plaintiff

N/A for the Defendants

CA:Chuma

Mohammed Noor Kullow

Judge

27/7/18