Okwara v Madimwa & another (Environment & Land Case 143 of 2015) [2023] KEELC 21274 (KLR) (7 November 2023) (Ruling) Neutral citation: [2023] KEELC 21274 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT BUSIA ENVIRONMENT & LAND CASE 143 OF 2015 BN OLAO, J NOVEMBER 7, 2023 BETWEEN MOSES O OKWARA .................................................................................. PLAINTIFF AND JAPHETH A MADIMWA ................................................................ 1ST DEFENDANT JAMES NYONGESA AKUMU ........................................................ 2ND DEFENDANT RULING 1. The dispute herein between Moses O. Okwaro (the Plainti) and Joseph A. Madimwa and James Nyongesa Akumu (the 1st and 2nd Defendants respectively) over the ownership of the land parcel NO Bukhayo/Ebusibwabo/962 (the suit land), was heard and determined by Omollo J. Vide a Judgment delivered on 10th March 2022, the Judge made the following disposal orders: a. A permanent injunction be and is hereby issued against the 1st Defendant, his agents, servants, family members, workers and any other person claiming through him from interfering with the Plainti’s occupation of the 2½ acres comprised in the land reference number Bukhayo/ Ebusibwabo/962; and b. Each party to meet their respective costs of the suit. No appeal appears to have been led against the judgment. 2. I now have for my determination the Plainti’s Notice of Motion dated 8th September 2022 seeking the following orders: 1. This Honourable Court do issue an order directing the County Surveyor Busia to proceed to L.R NO Bukhayo/Ebusibwabo/962 with a view to curving out 2½ acres therefrom in favour of the Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21274/eng@2023-11-07 1
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2. That the Ocer Commanding [OCS] Nambale Police Station do provide security during the said exercise. 3. The application is based on the grounds set out therein and is also supported by the adavit of the Plainti. 4. The gist of the application is that there is already a judgment in the Plainti’s favour by which he was awarded 2½ acres out of the suit land. No appeal has been preferred against that judgment delivered on 10th March 2022 and therefore the orders sought should be granted. A copy of the said judgment is annexed to the application. 5. When the application was placed before me for directions, I ordered that it be canvassed by way of written submission. 6. Though served with the application and the Plainti’s submissions, the 1st Defendant did not le any responses. The 2nd Defendant was never served and therefore the orders herein will relate to only the 1st Defendant. 7. I have considered the application, un-opposed as it is. I would have thought that having approached this Court seeking an order of a permanent injunction, the Plainti already knew not only the size of the land but also that it was already demarcated. How else could he be seeking an order to injunct the Defendants from an imprecise parcel of land? Nonetheless, the application is not opposed and this Court can only presume that the 1st Defendant, who was the only one served as per the Court records and who did not respond to it, is aware about what portion the surveyor needs to curve out of the suit land and that he will comply accordingly. 8. The application is accordingly allowed as against the 1st Defendant in the following terms: 1. The County Surveyor Busia to proceed to the Land parcel NO Bukhayo/Ebusibwabo/962 and curve out 2½ acres therefrom in favour of the Plainti. 2. The 1st Defendant and those acting under him must comply with the above order and ensure that he and anybody acting through him does not hinder that process. 3. In default of (2) above, the Plainti will be at liberty to seek protection from the Oce Commanding [OCS] Nambale Police Station. 4. No orders as to costs. BOAZ N. OLAO JUDGE 7TH NOVEMBER 2023 RULING DATED, SIGNED AND DELIVERED ON THIS 7TH DAY OF NOVEMBER 2023 TO THE PLAINTIFF’S COUNSEL BY WAY OF ELECTRONIC MAIL. Since the 1st Defendant neither entered appearance nor led any defence, counsel for the Plainti shall serve a copy of this ruling upon him. BOAZ N. OLAO JUDGE 7TH NOVEMBER 2023 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21274/eng@2023-11-07 2
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