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ELCAllowedNotice of motion dated 12th July 2016 (suit over land parcel Kisumu/Konya/36)· [2017] KEELC 3272 (KLR)

George Timothy Opande v Ezekiel M. Okemwa & 2 others [2017] KEELC 3272 (KLR)

Environment and Land Court

29 March 2017

SKS.M. Kibunja

543 words in judgment

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The bottom line

A Kisumu court stopped further development on disputed land until a boundary dispute between two neighbours is finally resolved.

What this practically means

Executive summary

The plaintiff, Dr. George Timothy Opande, moved the Environment and Land Court by notice of motion dated 12th July 2016 seeking to restrain the 2nd defendant, Olang Lynda Adede, from wasting, destroying or degrading, or interfering with his quiet enjoyment, possession and occupation of land parcel Kisumu/Konya/36 pending the hearing and determination of the main suit. The application, supported by the plaintiff's affidavit, was opposed through the 2nd defendant's replying affidavit sworn on 27th September 2016 and was heard on 28th November 2016. The court framed three issues: whether the plaintiff had established a prima facie case with a probability of success for a temporary injunction at the interlocutory stage; what orders to issue; and who should pay costs. Examining the title documents, the court noted the plaintiff was registered over parcel Kisumu/Konya/36 and the 2nd defendant over the adjoining parcel Kisumu/Konya/34, with the parcels measuring 0.25 and 0.11 hectares respectively. A Land Registrar's report dated 3rd May 2012, obtained under a court order of 1st March 2012, confirmed an existing boundary dispute between the parcels and recommended resolution by amending the map to suit the ground position under a mutual agreement between proprietors; there was no indication that recommendation was adopted or implemented. Holding that the developed portion was claimed by the plaintiff, the court found it fair that further developments on the disputed portion be stopped pending determination of whether it fell on parcel 34 or 36. The motion was allowed in terms of prayer 3 pending the suit's determination, with costs in the cause.

Key legal issues

Prima facie case with a probability of success for an interlocutory temporary injunction

Holding

The plaintiff established sufficient basis for a temporary injunction because documents of title and the Land Registrar's report confirmed an unresolved boundary dispute over the portion on which the 2nd defendant was developing.

Reasoning

The court considered the title documents showing the plaintiff and 2nd defendant as registered proprietors of adjoining parcels, and the Land Registrar's report of 3rd May 2012 confirming a boundary dispute recommended for resolution by amending the map, with no indication the recommendation was adopted or implemented. Since the developed portion was claimed by the plaintiff, stopping further developments pending trial was fair.

p. 2

Legal principles established

Where a disputed portion of land is subject to an unresolved boundary dispute, it is fair that further developments on the disputed portion be stopped pending determination of which parcel it falls on.

Court orders

1.The notice of motion dated 12th July 2016 is allowed in terms of prayer 3 pending hearing and determination of the suit, restraining the 2nd defendant from wasting, destroying or degrading or interfering with the plaintiff's quiet enjoyment, possession and occupation of land parcel Kisumu/Konya/36 pending determination of the suit.
2.Costs in the cause.

Jurisdiction invoked: Environment and Land Court jurisdiction under Article 162(2) of the Constitution (inferred from court designation; not expressly cited)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "George Timothy Opande v Ezekiel M. Okemwa & 2 others [2017] KEELC 3272 (KLR)", Case Analysis (2017). Notice of motion dated 12th July 2016 (suit over land parcel Kisumu/Konya/36). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3272/eng@2017-03-29

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