Mohammud Mohammed Alio & Abdullahi Ismael Morow v Richard Obiero Nyakundi [2015] KECA 29 (KLR)

IN THE COURT OF APPEAL

AT KISII

(CORAM: MARAGA,MUSINGA & MURGOR,JJ.A.)

CIVIL APPEAL NO. 61 OF 2014

BETWEEN

MOHAMMUD MOHAMMED ALIO

ABDULLAHI ISMAEL MOROW....................................................APPELLANTS

AND

RICHARD OBIERO NYAKUNDI......................................................RESPONDENT

(Appeal from the Ruling and Order of the High Court  of Kenya at Kisii

( Okong'o, J.) dated 6th day of June, 2014

H.C.C. SUIT NO. 377 OF 2013

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ORDER OF THE  COURT

When this appeal was called out for hearing, this Court, on its own motion, expressed to counsel its unwillingness to hear it considering the nature of the matter in dispute.

The trial Court ordered that pending hearing and determination of the substantive suit pending before it, neither party should enter, develop, lease or transfer the suit property, namely L.R. No. Kisii Municipality/Block 1/757.

Each of the parties claim to be the rightful owner of the property and the trial judge heed that the issue of ownership of the suit property could only be conclusively determined upon hearing vica voce evidence.   He therefore declined to grant the interlocutory orders that were being sought by the appellant.

We are in agreement with the views expressed by the trial judge.

When the court notified counsel of its views as hereinabove stated, Mr. Bosire, learned counsel for the appellant, applied to withdraw the appeal but requested that an order  be  made  for  the  substantive  suit  to be  heard  on  priority  basis,  to which Mr. Ochoki, learned counsel for the respondent, had no objection.

In the circumstances, this appeal is marked as withdrawn under rule 96 (5) of this Court's Rules with no order as to costs.

We further recommend that H.C.C.C. No. 377 of 2013 be heard on priority basis.

DATED at Kisii this 6th day of May, 2015

D.K.MARAGA

..................................

JUDGE  OF APPEAL

D.K. MUSINGA

.................................

JUDGE OF APPEAL

A.K.MURGOR

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JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR