Plista A. Orera & another v Peter Ojigo [2014] KEHC 7441 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

LAND AND ENVIRONMENT 109 OF 2012

PLISTA A. ORERA & ANOTHER.....................................PLAINTIFF

VERSUS

PETER OJIGO...............................................................DEFENDANT

RULING

This is a ruling on an application – a Notice of Motion – filed here on 26/11/2012 – by the plaintiffs – PLISTA ANYANGO ORERA and BENSON OCHIENG ORERA – against the defendant – PETER OJIGO.

The plaintiffs seek a restraining order against the defendant, by himself, workers, agents or whomsoever else restraining them from fencing, trespassing, encroaching, forcefully entering, constructing, disposing or interfering with plaintiff's land parcel No. EAST GEM/ANYIKO/1386 pending hearing and determination of the suit.  The O.C.S, Yala, is required to help in effecting the orders and the plaintiffs ask that costs of the application be in the cause.

The grounds advanced in support stipulate, inter alia, that the defendant is already constructing on EAST GEM/ANYIKO/1386 (hereafter the suit land) although he knows the suit land belongs to the plaintiff.  The plaintiff said he is the registered owner, having inherited the suit land from ORERA ODHUHU.  I t is alleged that the plaintiffs have a primafacie case and will also suffer irreparable loss if the defendant is not stopped.

The 1st plaintiff swore a supporting affidavit saying, interalia, that she inherited the suit land from her husband – ORERA ODHUHU. She had had a dispute with the defendant before Siaya Land Disputes tribunal.  It would appear that she won.  The defendant appealed  but the appeal was dismissed.

The defendant filed a replying affidavit and stated that the matter arises from a protracted Succession dispute and asked the court to consider that before issuing any orders.  He said further that he and his two brothers are the right beneficiaries of the suit land by virtue of being the living grandsons of the late MIRIAM DEMBA OKANG'A.

Some history was given.  The plaintiff's grandfather had MIRIAM DEMBA OKANG'A as his wife.  The grandfather died and MIRIAM was levitated by Odhuhu Suji who is now deceased. Suji was 1st plaintiff's father in law and grandfather to 2nd plaintiff.  MIRIAM then got sick. Suji took control of the family land and during registration, Suji fraudulently registered the family land in his name.  The family land was registered as EAST GEM/ANYIKO/1040 but was later sub divided into EAST GEM/ANYIKO/1385andEAST GEM/ANYIKO/1386.

The defendant deponed further that at the time of demarcation parcel No.1040 was in exclusive control of his parents and that there is no relation between his family side and the plaintiff's side. It would appear that the defendant is contesting the alleged fraud committed by Suji.

The Court heard the application interpartes on 25/6/2013.  During hearing the plaintiffs' counsel generally re-stated what the grounds advanced in support and the supporting affidavit contain.  It was not much different also with the defendant's counsel.

The Court has looked at the suit as filed and also at the defendant's defence and counter-claim.  This is done with a view to deciding whether a prima facie case is made out by the plaintiffs.  It seems to the Court that the defendant's defence and counter-claim present a formidable challenge to the plaintiff's case but there is no running away from the fact that the plaintiff is still the registered owner of the land.

When the fact of registration is considered, it becomes difficult to countenance the fact that one can enter another's registered land and start construction.  This would constitute both violation and disregard of the law.  However meritorious the defendant may feel his claim to be, nothing warrants him to start any activities on the suit land before adjudication of  his claim.  It is precisely because of all this that the court holds that the plaintiff has established a prima facie case.

The court therefore grants the prayer of restraining order as prayed for in prayer 3 in the application.  Prayer 4 is not granted for now.  Violation of prayer 3 would constitute contempt and the plaintiff should institute the necessary proceedings should there be breach of that order.  The plaintiff is  also awarded costs of the application.

A.K. KANIARU – JUDGE

10/1/2014

10/1/2014

A.K. Kaniaru – Judge

Diang'a George – C/C

No party – Present

Omondi M. for Nyatundo for Plaintiff/Applicant

P. Otieno (absent) for defendant

COURT:Ruling on application filed on 26/11/2012 read and delivered in  open COURT.

Right of Appeal – 30 days.

A.K. KANIARU – JUDGE

10/1/2014