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JudgmentDIVINAH OTIENO VS WILSON OTIENO WAINDI5 min read

DIVINAH OTIENO VS WILSON OTIENO WAINDI

Environment and Land Court at Vihiga Environment and Land Court · · E. ASATI, J

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT VIHIGA

ELC CASE NO.   E006 OF 2024

DIVINAH MORAGWA OTIENO…………………..…PLAINTIFF/APPLICANT

VERSUS

WILSON OTIENO OMWOM………………….…DEFENDANT/RESPONDENT

RULING

The application before court for determination is the Notice of Motion dated 6th June 2024 brought by the Plaintiff pursuant to the provisions of Articles 50(1) and 159(2) of the Constitution of Kenya, sections 1A & B, 3A and 63(c) and (e ) of the Civil Procedure Act, sections 13 (1)  and (5) (a) and 19 of the Environment and Land Court Act and Order 40 Rules 1, 2 and 3 & 4 of the Civil Procedure Rules.

The prayers sought are that

    1. this application be and is hereby certified urgent for hearing on priority basis.
    2. the requirement for service of the application be and is hereby temporarily waived for the sake of the interim reliefs sought in paragraphs 3, 4, 5 and 6 of the Motion which are granted ex parte.
    3. Pending inter parties hearing, a prohibition order do issue to be registered at the Vihiga County Land Registry on land parcel SOUTH MARAGOLI/BUYONGA/2927 prohibiting registration of any entry and/or transaction on the said land parcel and the said prohibition to remain until the inter parties hearing of this application and or further orders of this Honorable Court.
    4. Pending inter parties hearing, the Plaintiff/Applicant and her four children of the marriage with the Defendant/Respondent namely Tessy Shirleen, Dylan Lukes Omwom, Trevor Jayden and Carl Bretton Omwom or any of them be and are hereby allowed free and unrestricted entry to land parcel known as  SOUTH MARAGOLI/BUYONGA/2927and access to the family house located thereon and to remain in peaceful and uninterrupted possession, use and occupation until inter parties hearing of the application and or further or other orders of the Honorable Court.
    5. The Officer Commanding Vihiga Police Station shall provide security to the Plaintiff/Applicant and the children if it becomes necessary to do so and upon being requested by the Plaintiff/Applicant or any of the children in order to give effect to the order of entry to the land parcel and access to the house by the Plaintiff and the children as ordered.
    6. A temporary order of injunction is hereby issued directed at the Defendant/Respondent restraining him from entry to the land and access to the suit house and further restraining him and any other person claiming or acting under him from interfering in any manner with the Plaintiff/Applicant\'s and the children\'s possession, access, occupation and use of the suit house located on the land parcel known as SOUTH MARAGOL1/BUYONGA/2927 or any part thereof and they all be so restrained until further or other orders of the Honorable Court.
    7. The interim reliefs herein once granted to remain in force and or be extended after inter parties hearing until the final determination of the suit or further or other orders of the Honorable Court.
    8. Costs of or incidental to this application be recovered from the Defendant/Respondent.

The application is based on the grounds, inter alia, that the suit land was bought and the house thereon constructed by the applicant, registration of the land in the name of the Respondent was only as a trustee for the applicant and the children, that the Respondent ejected the applicant and the children from the house and the suit land and is selling it to a third party. The application was supported by the averments in the Supporting Affidavit.

The application was unopposed. Affidavit of Service sworn on 19th June 2023 by Wellington Mboku Odeyo who describes himself as a Court Process Server indicate that the Respondent was served with the application and other court process on 13th June 2024 via email. Another Affidavit of Service sworn by the same deponent on 13th September 2024 shows that the Respondent was served with the Hearing Notice on 30/8/2024 while in prison where he had been committed to on 22nd August 2024.

There was no reply filed to the application in spite of the Respondent having been served with the application on 13th June 2023.

I have read and considered the contents of the application, Supporting Affidavit and annexures.  The property in dispute is registered in the name of the Respondent although the applicant claims that she is the one who bought it, constructed the house on it and had it registered in the name of the Respondent only as a trustee, that the parties’ matrimonial home/house was on the suit property and that the applicant has been living at a rental house in Kisumu after she was ejected from the suit land by the Respondent.

Taking into account the circumstances of this case namely; that the parties are spouses and ownership of the suit land is what is in contest and being guided by the grounds for grant of temporary injunctions as set out in Order 40 Rule 1 Civil Procedure Rules 2010 and Giella vs Cassman Brown Co. Ltd (1973) 358 that the Applicant must establish a prima facie case with a probability of success, an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience, I consider it just to preserve the suit property pending hearing of the main suit wherein the issue of ownership will be determined.

I therefore allow the application in terms of prayer 3 and 6 in the following terms: -

  1. A prohibitory order is hereby granted to be registered at the Vihiga land registry on land parcel No. SOUTH MARAGOLI/BUYONGA/2927 prohibiting registration of any entry and/or transaction on he said land pending hearing and determination of the suit herein.
  2. A order of temporary injunction is hereby issued restraining the Respondent and any other person claiming or acting under him from selling, transferring, disposing of, charging, letting or in any other manner interfering with title or parting with title of the suit land parcel No. SOUTH MARAGOLI/BUYONGA/2927 or any part thereof pending hearing and determination of the suit.
  3. Each party to bear own costs of the application.

Orders Accordingly.

Ruling, dated and signed at Vihiga and read virtually this 17th day of September 2024 through Microsoft Teams online application.

E. ASATI,

JUDGE.

In the Presence of

Ajevi- Court Assistant.

Malanda Advocate for the applicant.

Wekesa Advocate for the Respondent.

Wanda Advocate for intended Interested Party.

    DIVINAH OTIENO VS WILSON OTIENO WAINDI DIVINAH OTIENO VS WILSON OTIENO WAINDI