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ELCPartially AllowedOriginating Summons (application dated 22nd October 2021) - Homa Bay; exact suit number not stated in judgment· [2021] KEELC 634 (KLR)

Isaiah Ogwe v Directorate of Criminal Investigations & 3 others [2021] KEELC 634 (KLR)

Environment and Land Court
30 November 2021
842 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Homa Bay court lifted restrictions on a landowner's parcels but barred him from selling or transferring them until the case is decided.

What this practically means

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Executive summary

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By a Notice of Motion dated 22nd October 2021, the applicant Isaiah Ogwe, supported by a 39-paragraph affidavit, sought stay of restrictions registered on 16th August 2019 by the respondents against six of his land parcels in Homa Bay County, pending the hearing of an originating summons dated the same day. He contended that he had purchased the properties between 1995 and 2017 with consideration from legitimate, unquestioned sources, and that the restrictions were registered without notice or any opportunity to explain himself before the 2nd Respondent, contravening Articles 40, 47 and 50 of the Constitution. The application, served by an authorised process server as evidenced by an affidavit of service sworn 30th November 2021, was not opposed; the respondents neither filed papers nor appeared. Counsel relied on section 82 of POCAMLA and the Asset Recovery Agency v Mike Sonko case. The court held that it was its duty to ensure service, that the respondents had the option to appear or not, and that under Article 25(c) the right to fair trial is unlimited. Finding the application unopposed and meritorious, the court granted orders 2 and 3: stay of the restrictions and costs in the cause. However, invoking section 13(7)(a) of the Environment and Land Court Act, the court also restrained the applicant from subdividing, transferring, selling, charging or otherwise disposing of the suit properties pending hearing and determination of the originating summons. The ruling was delivered at Homa Bay on 30th November 2021 by G.M.A Ong'ondo, Judge.

Key legal issues

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01

Whether an unopposed application for stay of restrictions registered against land, founded on want of notice and fair hearing, should be allowed

Holding

The application was found unopposed and meritorious; the stay was granted and costs made in the cause

Reasoning

The respondents were duly served by an authorised process server but failed to respond or appear without any reason. The applicant asserted that the restrictions were imposed without notice or an opportunity to explain himself before the 2nd Respondent, contravening Articles 40, 47 and 50 of the Constitution. The court noted the unlimited right to fair trial under Article 25(c), concluded the parties had been afforded a fair hearing of the application, and found the application unopposed and steadfast, granting orders 2 and 3 sought.

p. 2
02

Whether the court could impose preservation orders over the suit properties notwithstanding granting the stay

Holding

Yes - invoking section 13(7)(a) of the Environment and Land Court Act, the court restrained the applicant from dealing with the suit properties pending determination of the suit

Reasoning

Having stayed the restrictions, the court nonetheless acted to preserve the suit properties, in the spirit of section 13(7)(a) of the Environment and Land Court Act, by barring subdivision, transfer, sale, charge or any other disposition pending hearing and determination of the originating summons. This preserved the subject matter of the litigation while relieving the applicant of the indefinite restrictions complained of.

p. 2

Legal principles established

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  • It is the duty of the court to ensure that respondents are served with an application, after which they may appear or decline to defend it
  • Under Article 25(c) of the Constitution, the right to fair trial is unlimited and parties must be given an opportunity of a fair hearing

Court orders

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  1. 1.Stay of the order imposing restriction on the applicant's land parcels Kanyada/Kanyango/Kalanya/5125, East Kanyada/Kanyadier/203, Kanyada/Kotieno Katuma 'A'/2312 and 2113, Homa Bay/Kothidha/556 and Kanyada/Kotieno Katuma A/2406, and/or any property of the applicant, pending the hearing of the originating summons
  2. 2.Costs of the application to be in the cause
  3. 3.Preservation order: the applicant shall not subdivide, transfer, sell, charge or dispose of, in any manner, the suit properties pending the hearing and determination of the suit
Jurisdiction invoked
Sections 3A and 80 of the Civil Procedure Act, section 6 and Order 1 rule 10, Order 45 rules 1, 2 and 3 of the Civil Procedure Rules, and sections 45, 70, 93 of the Law of Succession Act, as invoked in the Notice of Motion; court's jurisdiction under section 13(7)(a) of the Environment and Land Court Act also invoked

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, "Isaiah Ogwe v Directorate of Criminal Investigations & 3 others [2021] KEELC 634 (KLR)", Case Analysis (2021). Originating Summons (application dated 22nd October 2021) - Homa Bay; exact suit number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/634/eng@2021-11-30

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