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ELCPartially AllowedNot stated in judgment· [2024] KEELC 5338 (KLR)

Orero & 5 others v Ombewa (Enviromental and Land Originating Summons E002 of 2024) [2024] KEELC 5338 (KLR)

Environment and Land Court
18 July 2024
GOG.M.A. Ongondo
289 words in judgment
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The bottom line

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What this practically means

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Executive summary

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By a notice of motion dated 3rd April 2024, the Defendant/Applicant, through M/s. Oyoo Z. Antone and Company Advocates, sought a temporary injunction against the six Plaintiffs/Respondents in respect of the whole of suit property LR No. North Sakwa/Kanyamgony/1247 pending the hearing and determination of the main suit. The application was served on the respondents' counsel, as evidenced by an affidavit of service sworn on 15th May 2024, but the respondents did not file a response. The court noted that a served party has the right to respond or not, citing Ogada v Mollin (2009) KLR 620. Counsel for the applicant urged the court to grant the injunction to preserve the suit property, contending that the respondents intended to dispose of it. G.M.A. Ongondo J held that it was necessary to preserve the property in the interim pending the outcome of the suit, in line with the Ogada authority and section 13(7)(a) of the Environment and Land Court Act, 2015, finding the application unchallenged and meritorious. Rather than granting the injunction in the precise terms sought, the court ordered that the status quo obtaining over the suit property be maintained by the parties pending the outcome of the suit, and specifically restrained the parties from selling, charging, transferring or subdividing the suit property or erecting any permanent structure on it during the pendency of the suit. Costs of the application were ordered to be in the cause. The judgment was delivered in open court at Migori on 18th July 2024.

Key legal issues

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01

Whether to grant a temporary injunction over the whole of suit property LR No. North Sakwa/Kanyamgony/1247

Holding

The court preserved the suit property by ordering maintenance of the status quo, restraining sale, charge, transfer, subdivision or erection of permanent structures pending the outcome of the suit

Reasoning

The application was duly served as shown in the affidavit of service sworn on 15th May 2024. The respondents, despite having the right to respond, failed to do so. Counsel for the applicant urged that an injunction was necessary to preserve the property, which the respondent intended to dispose of. The court found the unchallenged application meritorious and invoked section 13(7)(a) of the Environment and Land Court Act to preserve the property in the interim.

p. 2

Legal principles established

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  • A party served with an application has the right to respond to it or not, and an unchallenged application may be granted if meritorious
  • The court may preserve suit property in the interim pending the outcome of the suit under section 13(7)(a) of the Environment and Land Court Act

Court orders

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  1. 1.Status quo obtaining over the suit property to be maintained by the parties pending the outcome of the suit
  2. 2.Parties shall not sell, charge, transfer, subdivide the suit property or erect any permanent structure thereon during the pendency of the suit
  3. 3.Costs of the application be in the cause
Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, 2015

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, "Orero & 5 others v Ombewa (Enviromental and Land Originating Summons E002 of 2024) [2024] KEELC 5338 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5338/eng@2024-07-18

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