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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 6307 (KLR)

Monanka & 3 others v Magoko (Enviromental and Land Originating Summons E018 of 2024) [2024] KEELC 6307 (KLR)

Environment and Land Court
26 September 2024
GOG. M. A. Ongondo
376 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

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 20th June 2024, the applicants, through Mwita Kerario and Company Advocate, sought a stay of execution of the orders and/or certificate of confirmation of grant issued in Kehancha Senior Principal Magistrate's Court Succession No. E020 of 2021, particularly the partition, subdivision and transfer of portions of land parcel No. Bukira/Buhirimonono/332 (the suit land), together with preservation orders pending the hearing and determination of the suit. The application was supported by a 29-paragraph affidavit and 21 grounds, contending that the defendant intended to partition and/or subdivide the suit land in execution of the subordinate court's orders without regard to the rights of the plaintiffs who are in actual occupation and possession, and that the defendant had started to destroy known boundary features and threatened eviction. Mr. Mwita Kerario urged the court to grant a status quo order in lieu of the injunction sought. The respondent, though duly served, did not oppose the application. The court, G. M. A. Ongondo J, determined the motion in terms of a status quo order to prevail over the suit land pending the outcome of the suit, invoking Section 13(7)(a) of the Environment and Land Court Act, 2015 and the decision in Ogada v Mollin (2009) KLR 620. The parties were expressly restrained from selling, charging, transferring or subdividing the suit land pending the hearing and determination of the suit. Costs of the motion were awarded in the cause. The judgment was delivered at Migori on 26th September 2024.

Key legal issues

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01

Whether preservation/status quo orders should issue over the suit land pending hearing and determination of the suit

Holding

Yes. The motion was determined in terms of a status quo order restraining sale, charge, transfer or subdivision of the suit land, invoking Section 13(7)(a) of the Environment and Land Court Act and Ogada v Mollin.

Reasoning

The applicants demonstrated that the defendant intended to partition, subdivide and transfer the suit land in execution of subordinate court succession orders, disregarding the rights of parties in actual occupation, and had begun destroying boundary features and threatened eviction. The respondent was duly served but did not oppose the application. On those unopposed facts, and guided by Ogada v Mollin, the court found preservation of the suit land necessary and granted a status quo order rather than the injunction/stay as framed, with costs in the cause.

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Legal principles established

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  • The court may issue status quo/preservation orders over land pending determination of a suit under Section 13(7)(a) of the Environment and Land Court Act, 2015, guided by the principles in Ogada v Mollin

Court orders

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  1. 1.Status quo order to prevail over the suit land pending the outcome of the suit
  2. 2.Parties shall not sell, charge, transfer, or subdivide the suit land pending the hearing and determination of the suit
  3. 3.Costs of the motion in the cause
Jurisdiction invoked
Sections 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, "Monanka & 3 others v Magoko (Enviromental and Land Originating Summons E018 of 2024) [2024] KEELC 6307 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6307/eng@2024-09-26

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