Stephen Omondi Oduor v Stephen Oduor Ochwago & Roseline Awino Oduor [2014] KEHC 646 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC.  NO. 216  OF 2014.

STEPHEN OMONDI ODUOR………………………………PLAINTIFF

= VERSUS =

STEPHEN  ODUOR OCHWAGO )

ROSELINE AWINO ODUOR  )…………………………. DEFENDANTS

R U L I N G

STEPHEN OMONDI ODUOR, hereinafter referred  to as the Applicant  filed  the notice of motion under  certificate  of urgency dated 16th December, 2014 against STEPHEN  ODUOR  OCHWAGO  and ROSELINE AWINO  ODUORI, hereinafter  referred to as 1st and 2nd Respondents for the following orders;

‘’   1………………………

2. That this honourable court be pleased to issue a temporary injunction restraining the Respondents their agents, servants, and or any other person  or persons working under them from selling, using, alienating, trespassing, constructing  on, destroying crops and threes therein is (sic) or therein in any     matter interfering  with ½ share of land parcel Marachi/Bujumba/1599 pending  the hearing and final determination of this application and thereafter pending the    hearing and  final  determination of this suit.

3. That costs of the application be provided for.’’

The application is based on the five grounds on the face of the application and the supporting affidavit  of the Applicant sworn on 16th December, 2014.

The application is opposed through the Respondents replying affidavits sworn on 24th December, 2014.

Mr. Onsongo and Jumba advocate appeared for the Applicant and Respondents respectively and made their submissions during the interpartes hearing of the application on 21st January, 2015.

I have carefully considered the grounds on the application, submissions by counsel, supporting and both replying affidavits and find as follows;-

That this  application  was filed contemporaneously with  the plaint dated 16th December, 2014 in which the Applicant/Plaintiff prays  for the following orders among others;-

A declaration that 1st Defendant/Respondent is not the Registered owner of the suit land.

A declaration that the Applicant/Plaintiff and 1st  Respondent/Defendant are entitled to half share each of the suit land by way of customary trust.

Injunction and eviction

Special damages  of Kshs.71,361/=

Costs.

That when  the matter came up for hearing of the application on 24th  December, 2014 before my brother Justice Tuiyott, a consent was recorded and is summarized as follows;

That the 2nd  Defendant/Respondent  is to continue  occupying  the house that she has constructed on the  disputed  parcel but shall not carry out any further developments or waste of that land.

The Plaintiff/Applicant  is to  stay out  of the disputed land.

That the orders above to remain in force pending the determination of the application dated 16th December, 2014.

That gong by the copy of the official search certificate issued  on 8th May, 1914 and attached to the Applicant’s  supporting affidavit,  the suit  land,  parcel Marachi/Bujumba/1599,  was registered in the names  of Ouma Owuor Ochwago on 28th  April, 1999 and title  deed issued. However, the Applicant contends that the suit land was ‘’at all. Material times….registered  in my grandfather’s name Ochieng Owuor….’’ O On the  other side   the 1st Respondent  contends  that the suit land was registered in his names, Ouma Owuor Ochwago by the brother to his father, Ochieng Owuor. The court is not in a position to  pronounce itself conclusively on whether or not the person name as the proprietor  of the suit land in the register  is the 1st  Respondent,  Ochieng Owuor  or some other person without hearing the parties herein.

That on 24th December, 2014 the parties  had agreed that the 2nd Respondent gets access to the suit land limited to the use of the house she had constructed.  The court does not find any good cause to change the  status quo established under  the said  order. The same should be maintained pending the hearing and determination   of the main suit. Any loss  that the applicant  may stand to suffer by failure to grant the order sort in the application of 16th December, 2014  can easily be computed and recovered  in damages  in the event he is successful as to reinstate him on the suit land  would be tantamount to deciding  on the final orders without hearing  the partes.

That for reasons set out above, the  court issues the following orders;-

That the application dated 16th December, 2014 is dismissed.

That Orders 1 and 2 of the consent  of 24th December, 2014 are confirmed and are to remain in force pending hearing and determination of this suit.

That the costs of the application dated 16th December, 2014  will be costs in the cause.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  26TH DAY OF FEBRUARY, 2015.

IN THE PRESENCE OF; PRESENT…………………..PLAINTIFF

…….PRESENT …………………..1ST DEFENDANT

……PRESENT……………………2ND DEFENDANT.

MR. ONSONGO FOR APPLICANT.

MR. JUMBA  FOR RESPONDENT.

JUDGE.