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…APPELLANT VERSUS AGNES TERESA KWAKA …………………………...... 1ST RESPONDENT MUNICIPAL COUNCIL OF KISUMU ………………… 2ND RESPONDENT (Being an appeal arising from the decision and judgement of the Learned Senior Principal Magistrate at…

…Council of Kisumu.…

…Council, the City Manager of the 3rd Defendant and the 3rd Defendant and County Government of Kisumu are trespassing. an order compelling the Defendant to approve the Plaintiffs’’ building plans.…

…That Municipal Council gave approval for development on the suit land, subject to conditions attached in the letter.…

…And that concerning the allegation of repossession of the land by the Municipal Council, there was no evidence produced.…

…The Appellant also produced a letter dated 21st July, 2010 signed by one George Opiny for Town Clerk Municipal Council of Kisumu.…

…Council of Kisumu).…

…The said determination by the NLC shows that the suit property was allocated by both the Government of Kenya and the Municipal Council of Kisumu.…

…The Plaintiff averred that the 1st and 2nd Defendants purported to have acquired the suit property from the Municipal Council of Kisumu.…

…He stated that the land was being acquired on behalf of the Municipal Council of Kisumu but it was the Government that was to pay compensation.…

…That the purported allocation of the land to the 1st, 3rd and 4th defendants by the Kisumu Municipal Council and by extension the 5th defendant was null and void in law.…

…E312 and E313 were nullified vide the Gazette Notice which revoked all allocations by the Municipal Council of Kisumu. PW2 was Harun Omom Okal.…

…On cross cross-examination by Bikundo, PW3 stated that the school applied to the Lodwar Municipal Council for more land, which was approved.…

…In it he stated that in 2012 he was serving as the Town Clerk of the Lodwar Municipal Council.…

…The 1st Respondent averred that he purchased Plot Nos. 13A and 13B from one Jackline Achieng, to whom the same had been allotted by Kisumu Municipal Council (“Municipal Council”).…

…The Appellant averred that since L.R No. 15026 was owned by the County Council, the same could not be alienated by the Municipal Council of Kisumu (“Municipal Council”).…

…NO.29515 measuring approximately 7.636 Ha. and belongs to the defunct Municipal Council of Kisumu and now County Government of Kisumu, designated as Mamboleo Slaughter House.…

…NO. 29515 measuring 7.636 Ha belongs to the defunct Municipal Council of Kisumu and now the County Government of Kisumu and designated as Mamboleo slaughter house.…

…The Plaintiff’s case was that he was allotted Plot No. 817, measuring 0.0580 hectares within Lodwar Town, through Allotment Letter No. 1096 issued by the defunct Lodwar Municipal Council.…

…They argued that no evidence was presented of any formal resolution by the defunct Municipal Council setting the land aside for public use.…

…PW1 produced exhibits namely; certificate of lease for the suit land, site plans and letter dated 10th May, 2011 from Municipal Council of Kisumu.…

…Exhibit P. 3 a letter from the Municipal Council of Kisumu dated 10 /5/2011 and addressed to the Plaintiff in respect of the service lane the subject hereof stated clearly that service lanes are meant to be used for access…

…That they have proprietary rights over the suit property as they were allocated the suit land by the Municipal Council of Kisumu. That they stand to suffer irreparable loss if the orders sought are not granted.…

…R. 15356 based on the units allocated by the Municipal Council of Kisumu. That land parcel numbers 15356- 17U and 15356- 4U, among others, constitute part of the larger block No. L.R. 15356 (Grant L. R. 55485).…

…The 1st and 2nd Defendants submitted that the suit property was repossessed by the Municipal Council of Kisumu from Kidiruban in 2007 and as such the land was public land owned by the Municipal Council of Kisumu.…

…The 1st and 2nd Defendants’ case is that the suit property among others was allocated to Kidiruban by the Municipal Council of Kisumu (the Council).…

…Reliance is placed in the case of Municipal Council of Mombasa -vs- Republic & Umoja Consultants Limited (2002) eKLR; where the court of appeal stated: - “Judicial Review is concerned with the decision-making process, not…

…In Municipal Council of Mombasa -vs- Republic & Umoja Consultants Limited (2002) eKLR the court of Appeal stated: - “Judicial Review is concerned with the decision making process, not with the merit itself; the court would…

…Further, a letter dated 24th August, 2005 by the Municipal Council of Kisumu to the 1st Defendant and signed by one P.O. Nungo, Director of Planning, indicated that the Defendants’ land was adjoining parcel No.…

…That the Municipal Council when contacted to remove the wall wrote a letter dated 24th August, 2005 requesting the Defendants to restore the original boundary.…

…In his oral evidence and witness statement, the Plaintiff averred that he saw an advertisement by the Municipal Council of Kisumu (the Council) inviting members of the public to apply for residential plots that it had repossessed…

…The 2nd Defendant has claimed ownership of the suit property through; a letter of allotment dated 19th September 2005 issued to the Municipal Council of Kisumu (the Council) by the Commissioner of Lands, a letter of allotment…

…On the distinction between ownership and possession, counsel relied on Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR) , which in turn cited M’Kiriara M'Mukanya & another v Gilbert Kabeere M'Mbijiwe…

…In Municipal Council of Eldoret v Titus Gatitu Njau [2020] KECA 782 (KLR) , the Court of Appeal, citing M’Kiriara M'Mukanya & another v Gilbert Kabeere M'Mbijiwe [1984] KECA 21 (KLR) , reiterated that trespass is a violation…