Woga & 3 others v Osura & 5 others [2023] KEHC 19893 (KLR)

Woga & 3 others v Osura & 5 others (Petition 20 of 2018) [2023] KEHC 19893 (KLR) (30 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19893 (KLR)

Republic of Kenya

In the High Court at Kisumu

Petition 20 of 2018

RE Aburili, J

June 30, 2023

Between

Jackton Oyaro Woga

1st Petitioner

Elkanah Nyariro

2nd Petitioner

Jane Awino Woga

3rd Petitioner

Risper Ajwang Nyandat

4th Petitioner

and

Jackton Oyiengo Osura

1st Respondent

Allan Okatch Osura

2nd Respondent

Professor Willis Kosura

3rd Respondent

National Land Commission

4th Respondent

The Director Of Survey Kenya

5th Respondent

The Attorney General

6th Respondent

Ruling

IN THE MATTER OF ARTICLE 2, 3, 10, 21, 22, 23, 27, 28, 29, 35, 40, 43, 45, 47, 63, 65, 156, 165(3), 258 OF THE CONSTITUTION OF KENYAIN THE MATTER OF CONTRAVENTION AND/OR APPREHENDED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMSANDIN THE MATTER OF EVICTION ORDERS ON PARCEL NO.111 OF 1973 OTHER JUDGEMENTS AND DECREE HEREINANDIN THE MATTER OF BREACH OF PROPRIETORY RIGHTS AND OWNERSHIP RIGHTSJACKTON OYARO WOGA.....…………….……...………...1STPETITIONERELKANAH NYARIRO………………………………….....…2NDPETITIONERJANE AWINO WOGA……………………………………….3RDPETITIONERRISPER AJWANG NYANDAT…………………………...…4THPETITIONER-VERSUS-JACKTON OYIENGO OSURA..…………………………...1STRESPONDENTALLAN OKATCH OSURA……………………………...…2NDRESPONDENTPROFESSOR WILLIS KOSURA…………….……..……..3RDRESPONDENTNATIONAL LAND COMMISSION…………………...…..4THRESPONDENTTHE DIRECTOR OF SURVEY KENYA…………….……5THRESPONDENTTHE ATTORNEY GENERAL……………………………..6THRESPONDENTRULING 1. This Ruling determines the Applicant’s/Petitioner’s application dated June 12, 2023 supported by the affidavit of Jackton Oyaro Woga the 1st Petitioner herein on behalf of all the other 3 Petitioners.

2. The application seeks for stay of those proceedings pending the hearing and determination of the Petitioner’s Court of Appeal Civil Appeal No. 80 of 2019 and that this court adopts the order of the Court of Appeal in Civil Application No. 3 of 2019 granting the orders of status quo until the appeal No. 80 of 2019 is heard and determined.

3. The applicants also pray that costs abide the outcome of the appeal. The applicant’s case is that vide Ruling rendered on 6th December 2018, the Petition was struck out with costs to the Respondents and the application for stay of Notice to Show Cause in Kisumu HCC No. 111 of 1973 was also dismissed.

4. The applicants sought and obtained leave to appeal and vide an order made by the Court of Appeal Civil Application No. 3 of 2019, the Court of Appeal ordered for status quo as far as eviction of the applicants from East Gem/Nyadhiwa/574 is concerned, until the hearing and determination of Kisumu Court of Appeal Civil Appeal No. 80 of 2019. This was on 30th October 2019.

5. The applicants therefore pray that the proceedings pending in this file, which basically involve taxation and recovery of costs awarded to the Respondents, be stayed until the appeal pending before the Court of Appeal is heard and determined.

6. The application was served upon the Respondents’ counsel but no response was filed and this court proceeded to hear counsel for the applicant orally on 21st June 2023.

7. Mr. Mwamu counsel for the applicants argued that application reiterating the prayers and grounds as supported by the 1st applicant’s affidavits which I have considered.

8. I observe that the only issue pending in this court is taxation of the Respondent’s Bill of Costs dated August 25, 2021 which is drawn at Kshs.3,945,000. The issues at hand involve eviction from land parcel No. East Gem/Nyadhiwa/574.

9. The Applicants lost the petition and application for stay of Notice to Show Cause why they cannot be evicted from the above parcel of land upon which they filed Court of Appeal Civil Appeal No. 80 of 2019 and vide Civil Application No. 3 of 2019, the Court of Appeal ordered for status quo to be maintained such that no eviction would ensure against the applicants from the above cited parcel of land.

10. That being the case, and as the Court of Appeal has already stayed the eviction of the applicants from parcel No. East Gem/Nyadhiwa/574, I find this application for stay of proceedings in this matter merited.

11. I order that there shall be stay of taxation of Bill of Costs filed by the Respondent in this matter pending the hearing and determination of Kisumu Court of Appeal Civil Appeal No. 80 of 2019.

12. Consequently, this file is marked as closed as no other action shall be taken until the determination of the Court of Appeal matter.

13. This file should be submitted to the Court of Appeal for fast tracking of the Court of Appeal matter as ordered in Civil Application No. 3 of 2019.

14. File closed.

Dated, Signed and Delivered at Kisumu this 30th Day of June, 2023R. E. ABURILIJUDGE