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JudgmentJOHN LUNDU KAHI VS WINDFRED KAMADI2 min read

JOHN LUNDU KAHI VS WINDFRED KAMADI

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

This ruling is in respect of the Notice of Motion application dated 2/9/2024 seeking for orders that: -

  1. This application be certified urgent and the same be heard ex-parte in the first instance.
  2. Leave be granted to the firm of Kevin Nyanyire & Co. Advocates to come on record for the Defendant/applicant.
  3. There be a status quo maintained on land parcel No. SOUTH MARAGOLI/KEGOYE/508.
  4. There be stay of execution of the judgement and decision delivered on 12th October 2023 in VIHIGA ELC CASE NO. 23 OF 2021 pending the hearing of this application.
  5. The costs of this application be provided for.

The application was based on the grounds that the applicant has filed an arguable appeal with probability of success, that the applicant’s land may be wrongly alienated by the Respondents, that the applicant is likely to suffer substantial loss if the application is not granted. That it is in the interest of justice that the application be allowed.

The application was supported by the contents of the Supporting Affidavit sworn on 2/ 9/ 2024.

The application was opposed vide the contents of the Replying Affidavit. The Respondent’s case is that it is the Respondent who has always been in occupation of the suit land.

Prayers (a) and (d) of the application are already spent as they sought for interim relief pending hearing of the application.

Prayer (b) of the application is not opposed. Prayer (c) seeks for maintenance of the status quo of the suit land. There was no evidence placed before court as to what the current status quo of the land is. Judgement was delivered more than one year ago. The applicant only deposed that the Respondent and his relatives had started destroying property on the suit land and that the Respondent was likely to execute the judgement. However, the judgement herein merely dismissed the suit with an order that each party bear own costs. The essence of an order of status quo is to maintain or preserve the situation or condition of the subject matter as it exists pending the occurrence of an event or until further orders. It is important that evidence be availed as to what the factual status is. It should be clear from the evidence what exactly the court is preserving by the order of status quo. The Respondent deposed that it is him who has occupation of the suit land.

I find no basis for granting an order that status quo be maintained.

The application is allowed in terms of prayer (b) only. No order as to costs.

Orders accordingly.

Ruling, dated and signed at Vihiga, read virtually this 28th Day of November 2024 through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Maureen- Court Assistant.

No appearance for the Applicant.

Willie for the Respondent.

    JOHN LUNDU KAHI VS WINDFRED KAMADI JOHN LUNDU KAHI VS WINDFRED KAMADI