Vitalis Obonyo Ochieng v Anastasia Aloo Otin & Siaya Land Registrar [2017] KEELC 1687 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.277 OF 2016

VITALIS OBONYO OCHIENG.................................................................PLAINTIFF

VERSUS

ANASTASIA ALOO OTIN ..........................................................1ST DEFENDANT

SIAYA LAND REGISTRAR……………………….…..........…..2ND DEFENDANT

RULING

1. Vitalis Obonyo Ochieng, the Plaintiff, filed the notice of motion dated 1st October 2016 seeking for temporary injunction restraining Anastasia Aloo Otin, the Defendant from “trespassing upon, wasting, alienating or otherwise interfering or dealing with the Plaintiff’s property “being East Alego/Masumbi/1959 pending the hearing and determination of this suit. The Plaintiff also prays for an order for the County Surveyor to visit the suit land and determine its boundary with East Alego/Masumbi/516 and establish the parcel that is occupied by the Defendant. The application is based on three grounds and supported by the affidavit of the Plaintiff sworn on the 21st October 2016.

2. The application is opposed by the defendant through her replying affidavit sworn on the 22nd November 2016 in which she among others depones that land parcel East Alego/Masumbi/516 is registered in her late husband’s name, Gordon Aloo Otin and no grant of letters of administration has been issued.

3. The following are the issues for the court’s determination;

a) Whether the Plaintiff has established a prima facie case with a probability of success for temporary injunction to issue at this stage.

b) Who pays the costs.

4. The court has considered the grounds on the notice of motion, affidavit evidence, the pleadings filed and concluded as follows:

a) That the Plaintiff is the registered proprietor of land parcel East Alego/Masumbi/1959 as confirmed by the copy of the title deed issued on 8th May 2012 annexed to the supporting affidavit.

b) That contrary to the Plaintiff’s averments and depositions that the Defendant is the registered proprietor of East/Alego/Masumbi/516, the Defendant has availed a copy of certificate of official search issued on 3rd November 2016 showing that the said land is registered in the name of Gordon Aloo Otin, who according to the certificate of death No.0536122 dated 18th September 2015 died on the 16th June 2007.

c) That the said Gordon Aloo Otin is not a party in this suit and the Defendant has not been sued a legal representative of the said deceased’s estate and is obviously not the registered proprietor of East Alego/Masumbi/516.

d) That in view of (c) above, the Plaintiff has failed to establish a prima facie case with probability of success for temporary injunction to issue at this stage.

5. That the notice of motion dated 21st October 2016 is without merit and is therefore dismissed with costs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 27TH DAY OF SEPTEMBER 2017

In presence of;

Plaintiff Present

Defendant Absent

Counsel None

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

27/9/2017

S.M. Kibunja Judge

Plaintiff present

Defendant absent

Order ruling dated and delivered in open court in presence of the Plaintiff only.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

27/9/2017