Shajanand Holdings Ltd v Michael Kiptorus & County Government of Kisumu; District Land Registrar, Kisumu & National Land Commission(Interested Parties) [2020] KEELC 43 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC  CASE NO. 240 OF 2015

SHAJANAND HOLDINGS LTD....................................................................PLAINTIFF

VERSUS

MICHAEL KIPTORUS.......................................................................1ST DEFENDANT

COUNTY GOVERNMENT OF KISUMU.........................................2ND DEFENDANT

DISTRICT LAND REGISTRAR, KISUMU.......................1ST INTERESTED PARTY

NATIONAL LAND COMMISSION...................................2ND INTERESTED PARTY

RULING

The Application before me is dated 3rd December, 2019.  The applicant, Shajanand Holdings Limited seeks orders that an injunction do issue directed at the 1st and 2nd respondents their agents, employees, workers, agents and/or whomsoever jointly and severally restrained them from taking possession, blocking the applicant and/or in any way interfering with the plaintiff/applicant’s quite possession of the suit property Kisumu/Municipality/Block 4/154. The costs of this application be provided for.

The application is based on grounds that the court in its judgement of 15th November, 2019 issued an order for the eviction the 1st Respondent from the Plaintiff/Applicant’s suit property Kisumu/Municipality/Block 4/154.

The Applicant has since evicted the 1st respondent from the suit property in line with the judgement of the court. The 1st respondent and employees of the 2nd Respondent have now embarked on harassing the plaintiff/applicant who is now in possession of the suit property.

The 1st respondent and employees of the 2nd Respondent have constantly been locking the Applicant’s gate to the suit property with padlocks to frustrate the plaintiff/applicant from freely moving about its property.

The 1st respondent and 2nd respondent are denying the applicant access and economic use of the suit property despite the applicant having evicted the 1st respondent.

The applicant stands to suffer irreparable injury in the event the injunction is not granted. The supporting affidavit of Chandrakant Chhabhadia reiterates the grounds. The respondent has responded vide the replying affidavit of Arnord Omondi Guya, an employee of the 2nd defendant.  He dwells on the fact that the decree of the court was improperly executed.  He also appears to complain on the consequences of the judgement.

I have considered the application, the replying affidavit and rival submissions and do find that the 1st and 2nd respondent’s behaviour borders on contempt of court orders as they appear intend on obstructing the applicant from enjoying fruit of the judgement of the court. This court has determined the dispute and therefore is functus officio. Parties should move to the next level of litigation. The applicants application is misconceived as an injunction cannot be issued where there is no suit pending. Moreover the injunction sought is permanent in nature and should have been sought in the suit. The applicant can only file an application for contempt. The application is dismissed with costs. Orders accordingly.

DATED, DELIVERED and SIGNED THIS 12th  DAY OF MAY, 2020.

A.O. OMBWAYO

ENVIRONMENT & LAND

JUDGE

This judgment is hereby delivered to the parties by electronic mail due to the measures restricting court operations due to COVID -19 pandemic and in light of directions issued by the Honourable Chief Justice and with the consent of the parties.

A.O. OMBWAYO

ENVIRONMENT & LAND

JUDGE