Leonida Sangonda Aono & George Odhiambo Aono v Elisha Otieno Ochola,Kenga Kalume Nuru & Bertrand Lubanga Saywa [2017] KEELC 2843 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.237 OF 2016

LEONIDA SANGONDA AONO ...................................1ST PLAINTIFF

GEORGE ODHIAMBO AONO…………………….....2ND PLAINTIFF

VERSUS

ELISHA OTIENO OCHOLA .....................................1ST DEFENDANT

KENGA KALUME NURU…………………………..2ND DEFENDANT

BERTRAND LUBANGA SAYWA …………………3RD DEFENDANT

RULING

1. Leonida Sangonda Aono and George Odhiambo Aono, the Plaintiffs, seeks for a temporary injunction order to restrain Elisha Otieno Ochola, Kenga Kalume Nuru and Bertrand Lubanga Gaywa, the Defendants, by themselves or their agents “from entering upon, taking possession, selling, mortgaging, charging, leasing, transferring, carrying out any construction thereon or excavation therefrom, fencing or carrying out any other activity whatsoever on L.R. No Kisumu/Chuga/ 2 or any part thereof, alienating or interfering by any means howsoever, with the property or any part thereof till the hearing and final determination of the suit.”  They also pray for costs.  The application is based on the eleven grounds marked (a) to (k) on its face and is supported by the affidavits sworn by the Plaintiffs on the 5th September 2016.  The Defendants were served through advertisement in a newspaper following the court order of 26th September 2016.

2. The application is opposed by the 3rd Defendant through his replying affidavit sworn on the 11th November 2016.

3. The application came up for hearing on the 13th February 2017 when Mr. Ochuka and Wesonga, learned counsel for the Plaintiffs and 3rd Defendant respectively, tendered their oral rival submissions.

4. The following are the issues for the courts determination,;

a) Whether the Plaintiffs have established a prima facie case with a probability of success for temporary injunction order to issue at this interlocutory stage.

b) What order to issue.

c) Who pays the costs.

5. The court has after considering the grounds on the notice of motion, affidavit evidence and oral submissions by both counsel come to the following conclusions;

a) That from the copy of the register for land parcel Kisumu/Chuga/2, the suit land, that has been attached to the Plaintiffs affidavits, the land was first registered on the 14th December 1983 in the name of Henry Aono.  That the said Henry Aono is reported to be the husband and father to the 1st and 2nd Plaintiffs respectively and that he died on the 25th October 1984 as confirmed in the certificate of death No.121537 issued on the 7th May 1985.

b) That the Plaintiffs case is that Henry Aono died on the 25th October 1984 while still being the registered proprietor of the suit land.  That they have been utilizing the land for farming as the legal and beneficial owners without any interruptions until in the 21st August 2016 when agents of the 3rd Defendant went to take possession prompting this suit.  That when they obtained a copy of the register, they discovered that the land had been transferred to the names  the 1st, 2nd and 3rd Defendants on the 5th March 1992, 27th April 2004 and 16th October 2013 respectively.  That it is the Plaintiffs case that registration of the suit land with the Defendants was tainted with fraud, was irregular, unlawful and unprocedural as the succession cause in respect of the estate of the late Henry Aono, who was the first registered owner, has never been done.  That though the 3rd Defendant has raised the defence of being a bona fide purchaser for value, the fact that there is no indication of how the 1st and 2nd   Defendants acquired registration with the suit land under the column headed “consideration and Remarks” in the register means the Plaintiffs claim is not unreasonable.  That it is only therefore fair that the status quo be maintained pending the hearing and determination of this case on merit.

6. That the notice of motion dated 5th September 2016 is found to be meritorious and is granted in terms of prayers (3) with costs in the cause.

It is so ordered.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 24TH DAY OF MAY 2017

In presence of;

Plaintiffs 1ST Plaintiff present

Defendants  Absent

Counsel  Mr. Onsongo for Ochuka for Plaintiffs

Mr. Ayayo for Wasonga for 3rd Defendant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

24/5/2017

24//5/2017

S.M. Kibunja Judge

Oyugi court assistant

Mr. Onsongo fopr Ochuka for Plaintiff/Applicant

Mr. Ayayo for Wasonga for 3rd Defendant

Court:  Ruling dated and delivered in open court in presence of

1st Plaintiff, Mr. Onsongo for Ochuka for Plaintiff and Mr. Ayayo for Wasonga for 3rd Defendant.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

24/5/2017