RULING
- Before the court is an application dated 25th April 2024 brought under Section 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Order 40 Rule 1 of the Civil Procedure Rules and Section 13 of the Environment and Land Court Act, 2011 seeking that;
- Spent
- Spent
- An order of temporary injunction be issued against the defendants and or employee restraining them from constructing, continuing with construction erecting any wall, ploughing, planting, leasing, selling, offering for sale, changing and or in any other way dealing with that parcel of land known as E/Marakwet/Sangurur/ Sangurur/481 (hereinafter referred was the suit property) pending the hearing of the main suit
- The officer commanding Kapsowar police station to supervise the enforcement of this order to avoid a breach of peace.
- Costs of the application be provided for.
- The application is premised on the grounds on its face and is supported by the affidavit of Julius Kamelei Chemweno sworn on 25th April 2024. He deposes that he is the registered owner of the suit property having been registered as proprietor on 1st November 2011 and has carried out massive development thereat; that the defendants trespassed onto the suit property on 20th April 2024 and have commenced digging a foundation with the intention of constructing a school; that as the registered owner, he is entitled to quiet and peaceful occupation and his property should be protected. He urges the court to grant him the prayers sought as he has established a prima facie case.
- The application is opposed vide the replying affidavit of Philip Yator, the 2nd defendant herein. He deposes that the suit property is public land which was donated to the community and previously hosted Sangurur Primary school; that several meetings have been held by the community to reconstruct the school which had been moved to an upper part of the escarpment when the school population declined; that the applicant is aware of these meetings having been invited to several of them which he declined to attend. It is his contention that the application is meant to deny the community its interest in the suit property and urges the court to dismiss the application as it does not meet the legal threshold for grant of orders for injunction.
- In a rejoinder, Julius Kamelei swore a supplementary affidavit on 23rd May, 2024. He denied that the suit property is public land and stated that the suit property is part of the estate of Chemweno Chebor Kibolot (deceased) and that no school has ever been erected in the suit property.
- When the application came for Interpartes hearing on 21st May 2024, an order of temporary injunction was granted in the following terms;
The defendants/respondents are restrained from constructing, erecting a wall, ploughing, planting, leasing, selling, offering for sale or charging land parcel E/Marakwet/Sangurur/Sangurur/481 pending interparties hearing of the application on 3rd June 2024.
- On 3rd June 2024, parties opted to compromise the application so that the suit could be fast tracked. The court ordered as follows;
- By consent the application dated 23rd April 2024 is compromised
- The defendants are restrained by themselves, their agents and or employees from constructing, erecting a wall, ploughing, planting, leasing, selling, offering for sale or charging land parcel E/Marakwet/Sangurur/ Sangurur/481 pending the hearing and determination of the suit.
- The defendants are granted leave of 14 days to file their statement/s of defence and fully comply with Order 11.
- Upon receipt of the statement/s of defence, the plaintiff will file his reply to the defence/s in 14 days and also comply with Order 11.
- The matter is set down for pretrial on 2nd July, 2024.
- Costs of the application will be in the cause.
Dated, signed and delivered, at Iten this 3rd day of June 2024.
Ruling delivered virtually in the presence of:-
Mr. Mathai for the Plaintiff/Applicant
Mr. Oyaro for the Defendant/respondent
Court Assistant: Christine