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ELCAllowedNot stated on the face of the judgment (Notice of Motion dated 12th February 2024)· [2024] KEELC 1297 (KLR)

Okumu (Suing as the legal administrator of the Estate of Moses Okumu Yugi (Deceased) v Abongo (Sued in her personal and representative capacities as the legal administrator of the Estate of Jairo Awino (Deceased) & another (Environment & Land Case E004 of 2024) [2024] KEELC 1297 (KLR)

Environment and Land Court
6 March 2024
GOG. M A Ong'ondo
447 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner won a court order protecting her homestead because the other side was properly served and simply failed to respond.

What this practically means

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Executive summary

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By a notice of motion dated 12th February 2024, the applicant, through Onyango Otunga and Company Advocates, sought a temporary injunction restraining the respondents, their agents, servants or employees, from charging, transferring, selling, evicting or denying the applicant and her family access to a portion measuring 0.06 Hectares on L.R No. West Kasipul/Konuonga/501, or interfering with her quiet possession, pending the hearing and determination of the suit. She also sought enforcement of the order by the O.C.S Oyugis Police Station and costs. The application was supported by a twenty-five paragraph affidavit and grounds including that the 2nd Respondent had recently beaconed and fenced off part of the applicant's homestead, disturbing her peace and denying her rights over the land. The court noted its duty to ensure a respondent is made aware of proceedings, citing Ogada versus Mollin, and found the respondents duly served, as shown in affidavits of service sworn on 22nd and 29th February 2024. Despite service, no response was filed. Relying on Order 40 of the Civil Procedure Rules, 2010 and Hutchings Biemer Ltd v Barclays Bank of Kenya Ltd on the purpose of injunctive orders in preserving property and the status quo, the court found the application firm and meritorious. The application was allowed in terms of prayers (c) and (d), with costs to the applicant, and it was so ordered on 6th March 2024 at Homa Bay.

Key legal issues

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01

Whether an unopposed application for temporary injunction, on proof of service, should be allowed

Holding

Yes. The respondents were duly served as shown in affidavits of service but filed no response; the application was found firm and meritorious and the prayers in paragraphs 1(c) and (d) were granted.

Reasoning

The court invoked the principle that a respondent must be made aware of proceedings and served with the necessary papers, citing Ogada versus Mollin. Service was proved by affidavits of service sworn on 22nd and 29th February 2024 and affirmed by counsel. There being no response, the court relied on Order 40 of the Civil Procedure Rules and the principle that injunctions preserve property and the status quo, and held the applicant deserving of the prayers sought.

p. 2

Legal principles established

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  • The court has a duty to ensure the respondent is made aware of the matter before it and is served with the necessary papers, after which the respondent may appear or decline to appear
  • Injunctive orders are meant to preserve property and maintain the status quo

Court orders

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  1. 1.Temporary injunction issued against the respondents, their agents, servants or employees, restraining them from charging, transferring, selling, evicting or denying the applicant and her family access to the portion measuring 0.06 Hectares on L.R No. West Kasipul/Konuonga/501, or otherwise interfering with the applicant's quiet possession, pending hearing and determination of the suit
  2. 2.The O.C.S Oyugis Police Station to ensure the order is enforced
  3. 3.Costs of the application to the applicant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40

Cases cited (2)

  • Ogada versus Mollin
    (2009) KLR 620
  • Hutchings Biemer Ltd-vs-Barclays Bank of Kenya Ltd & 2 others
    (2006) eKLR
Jurisdiction invoked
Not expressly stated; the application is brought under Order 40 of the Civil Procedure Rules, 2010 (temporary injunctions and interlocutory orders)

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, "Okumu (Suing as the legal administrator of the Estate of Moses Okumu Yugi (Deceased) v Abongo (Sued in her personal and representative capacities as the legal administrator of the Estate of Jairo Awino (Deceased) & another (Environment & Land Case E004 of 2024) [2024] KEELC 1297 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (Notice of Motion dated 12th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1297/eng@2024-03-06

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