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ELCPartially AllowedOriginating Summons dated 18th August 2009 (Kisumu)· [2017] KEELC 2810 (KLR)

Michael Agudi Oker & another v George Oteino Juma & another [2017] KEELC 2810 (KLR)

Environment and Land Court
31 May 2017
1,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court froze all activity on disputed Kisumu land after its ownership was shuffled mid-lawsuit, warning that titles transferred during pending cases can be undone.

What this practically means

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Executive summary

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This is a ruling by S.M. Kibunja, Judge of the Environment and Land Court at Kisumu, delivered on 31st May 2017 on a notice of motion dated 12th April 2016 by the Plaintiffs, Michael Agudi Oker and Gabriel Olale Aguda. They sought enforcement of an exparte order of 24th March 2010 requiring the 2nd Defendant, Joshua Ouma Omollo, to remove a fence and building materials from land parcel Kisumu/Border/29, or alternatively a temporary injunction restraining him from interfering with, disposing of or further constructing on the suit land pending hearing of the suit. The 2nd Defendant opposed the application through a replying affidavit sworn on 16th August 2016, and the parties elected to dispose of the application by written submissions. The court framed three issues: whether the Plaintiffs had made out a reasonable case with a probability of success, what orders should issue, and who should bear the costs. The court reviewed the record and found that the order of 24th March 2010 had been made exparte before the 2nd Defendant was joined, and there was nothing to show the relevant motion had been heard interpartes or that he was served with that order. It further found that the suit land was registered to Albert Okech Ombanyi when the originating summons was filed in October 2009; that the 1st Defendant was registered on 24th February 2010 and transferred the title to the 2nd Defendant on 11th March 2010, while the suit was pending and after interlocutory judgment had been entered against the 1st Defendant. The court held the transfer questionable and allowed the application, restraining the 2nd Defendant from interfering with, disposing of or constructing on the suit land pending determination, with costs of the application to the Plaintiffs.

Key legal issues

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01

Whether a temporary injunction should issue against the 2nd Defendant at the interlocutory stage

Holding

The notice of motion dated 12th April 2016 has merit and is allowed; the 2nd Defendant is restrained from interfering with, disposing of or further constructing on the suit land pending hearing and determination of the suit

Reasoning

The court found that the suit land was registered to Albert Okech Ombanyi when the suit was filed, and that the 1st Defendant was registered as proprietor on 24th February 2010 and transferred the title to the 2nd Defendant on 11th March 2010, all while the suit was pending. The removal of the Plaintiffs' caution, the registration and the transfer while the suit was pending made the transfer to the 2nd Defendant questionable and justified safeguarding the legal status of the land.

p. 2
02

Whether the 2nd Defendant was bound by the order of 24th March 2010

Holding

There was nothing on the record to confirm whether the notice of motion dated 12th March 2010 was ever amended to include the 2nd Defendant or whether he was ever served with the order of 24th March 2010

Reasoning

The order of 24th March 2010 was made exparte before the 2nd Defendant was enjoined in the proceedings. The court noted that the notice of motion dated 12th March 2010 did not appear to have been heard interpartes to date, and there was no confirmation that the 2nd Defendant had been served with that order, so he could not be compelled to comply with it directly.

p. 2

Legal principles established

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  • Where title to suit land is transferred to a third party while a suit challenging that title is pending, the legal and physical status of the land should be maintained pending hearing and determination
  • Registration and transfer of suit land during the pendency of proceedings gives credence to a plaintiff's fears of prejudicial developments

Court orders

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  1. 1.Pending the hearing and determination of this suit, the 2nd Defendant be and is hereby restrained by himself or agents from interfering with, disposing of or doing any further construction on land parcel Kisumu/Border/29
  2. 2.The 2nd Defendant do pay the plaintiffs costs of the application
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (not expressly cited in the ruling; suit concerns land parcel Kisumu/Border/29)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Michael Agudi Oker & another v George Oteino Juma & another [2017] KEELC 2810 (KLR)", Case Analysis (2017). Originating Summons dated 18th August 2009 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2810/eng@2017-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.