Wilson Ochieng Anyim v Charles Odhiambo Ogutu [2014] KEELC 15 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 10 OF 2012.

WILSON OCHIENG ANYIM……….......………………… APPLICANT

=VERSUS=

CHARLES  ODHIAMBO  OGUTU……………………    RESPONDENT

R U L I N G.

NELSON OCHIENG ANYIM, hereinafter referred to as the Applicant, filed the Notice of Motion under certificate of urgency dated 24th July, 2014 through M/S. Balongo & company advocates seeking;

‘’    b) ……….an interim order of injunction …….    restraining , the Respondent  (Charles Odhiambo Ogutu)…………from                                 dealing with land parcel No.Bunyala/Mudembi/896   pending    the hearing of the application interpartes.’’

The Applicant  also prays for costs.

The application is based on the four grounds on the face of the application that;

The Respondent is erecting a fence around the Applicant’s  homestead.

The Respondent is digging trenches and foundation and depositing building materials on the disputed parcel of land.

The Applicant is apprehensive over the safety of his homestead.

The Respondent is determined to put up structures on the disputed land notwithstanding the pending litigation.

The  application  is also  supported by the affidavit  of Wilson  Ochieng  Anyim  sworn on 24th July, 2014  in which  he among others deponed that Jacob  Onyango  Owino  transferred  the suit land to the Respondent when this suit was pending.

The Respondent, Charles Odhaimbo Ogutu, through M/S. Ouma – Okutta Associates Advocates filed a replying affidavit whose date of commissioning is not indicated opposing the application.  The Respondent  inter alia depones;

That he is the registered owner of the suit land and hence entitled to use it.

That he bought the land after the caution had been removed following   the due process.

During the inter partes hearing, Mr. Jumba and Mr. Okutta  advocates appeared for the Applicant and Respondent respectively.

The court has considered the grounds on the application, submissions by counsel, supporting and replying  affidavits and find as follows;

That the main suit was commenced through the originating summons filed on 30th October, 2012. The originating  summons has five Applicants with Wilson Ochieng  Anyim, the Applicant herein, as the 3rd Applicant.  It also has two Respondents with Charles  Odhiambo Ogutu, the Respondent  herein, as the 2nd Respondent.

That at  the time of the filing of the originating summons, the suit land,  Bunyala/Mudembi/896 ,was registered in the names of Jacob Onyango Owino, who is the 1st Respondent.

That the Respondent  in this application got registered  as the proprietor of the suit land on 12th August, 2013 and had  the title deed issued on 31st October, 2013 when this case was pending in this court.

That by the time this suit was filed, the 1st Applicant, Francis  Odongo Odere, had  on 18th October, 2012 filed a restriction on the suit land  claiming a half share.

That the restriction was lifted on 14th may, 2013  by the Land Registrar.

That even  though, there was nothing that  restricted the transaction between the Respondents resulting to the Respondent in the application being registered  with  the suit land,  both knew of  the existence of this suit as they had filed their replying affidavit,  sworn by Jacob Onyango Owino, on 19th November, 2012.

That  the Notice of Motion  dated 24th July, 2014  filed through counsel  is already  spent as it was only praying  for  interim restraining orders ‘’pending  hearing of the application interpartes.’’ The interim  orders were issued on 24th July, 2014 and the interpartes hearing took place on 20th July, 2014, when  the interim orders were  extended to the date of ruling being 24th September, 2014.  Had the Applicant wanted the orders to be  issued  after interpartes hearing  to be in force until the suit is heard and determined, he  would have clearly indicated so.

That even though  the Applicant’s counsel failed to apply for the restraining  orders to remain in force  pending the hearing and determination of this suit, this court has powers under Article  159  of the Constitution, Sections 3 (1) and 19 (1) of the Environment  and Land  court  Act and  sections  1A and 3A of the Civil  Procedure  Act to issue orders, even  suo moto, aimed at giving  effect to the overriding objective which is to facilitate the just, expeditious, proportionate and  accessible resolution of disputes.

That it is  desirable that the status quo  obtaining  at the time this suit was  filed be maintained pending the hearing  and determination of this suit.  To  this end, and as the 1st Respondent has already  transferred  the suit land to the 2nd Respondent,  the court will issue  inhibition orders in exercise of the power granted under  section 68 (1) of the  Land Registration  Act to     conserve the suit land.

That from the foregoing , the  court issues the following  orders:

That  the status quo obtaining as of the date of filing the originating  summons dated 30th October, 2012  on the use of the suit land be maintained pending the hearing  and determination of this suit.

That an inhibition against the suit land Bunyala/Mudembi/896 in terms of section 68 (1) of the Land Registration  Act is hereby issued pending  hearing  and determination  of this suit.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 24TH DAY OF SEPTEMBER 2014

IN THE PRESENCE OF;

JUDGE.