Samson Onyango Matinde v Gordon Juma Migwambo [2017] KEELC 97 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MIGORI

E. L. C.C. NO.  318 OF 2017

SAMSON ONYANGO MATINDE...............PLAINTIFF/APPLICANT

VERSUS

GORDON JUMA MIGWAMBO..........DEFENDANT/RESPONDENT

RULING

1. By a Notice of Motion dated 3/4/2017, the Plaintiff/Applicant in person seeks against the Defendant that the application be certified as urgent, temporary injunction and costs of the suit in respect of the suit land L. R. West Kasipul/Konuon’ga/840.   The application is supported by five (5) grounds among them, that the Applicant is the legal administrator of the suit land.

2. The Defendant was duly served on 14/6/2017 by an Affidavit of service sworn on 22/6/2017 by a process server, Gerald Kabutu Kiunga.   There is no reason for his absence.

3. I note that the prayer number two (2) sought in the Notice of Motion is for a temporary injunction.   The Plaint has temporary permanent injunction as one of the reliefs sought therein.  I am aware that the Plaintiff / Applicant is unrepresented and there is need for him to amend the plaint.

4. I am aware of Section 100 Civil Procedure Act Cap 21 on the Courts general power to amend. I am conscious of  right to fair hearing under  Article  50(1) Constitution, 2010 as well as Article 159(2) (a) (b) & (d) Constitution,  2010 that justice should be  administered to  all,  without  delay and without undue regard to procedural technicalities.

5. I have also noted the Principles for the grant of a temporary injunction and interlocutory orders as governed by Order 40 Civil Procedure  Rules, 2010 and the holding in Giella =vs= Cassman Brown (1973) EA 358.  In the circumstances, I am satisfied that  the Plaintiff/Applicant has not met the threshold of the Giella case (I bid).

6. I accordingly decline to grant prayer 2 sought in the Notice of Motion application.

7. In the interest of justice, I direct as herein under:-

(a) The Plaintiff /Applicant may amend, file and serve the plaint on the Defendant/Respondent within the next thirty (30) days from the date hereof.

(b) The Defendant / Respondent to file defence within thirty (30) days from the date of service and serve the same within the same period.

(c ) Mention 20/9/2013 for pre-trial directions before the Deputy Registrar Migori.

DELIVERED, DATED and SIGNED at MIGORI this 27th day of June 2017.

G. ONG’ONDO

JUDGE

In the presence of:

The plaintiff / applicant

Tom Maurice , Court Assistant

G. ONG’ONDO

JUDGE