Case ID:174853

Robert Cherukwo Chemrigai & another v Philip Lodama & 12 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 2 of 2021

Parties:

Robert Cherukwo Chemrigai & Anthony Ruto Loitaruk v Philip Lodama, Simon Palokapel, Dominic Mukutano, Lowiwareng Longar, Christopher Ruto, Lochilaruk Wepegh, Robert Diakapus, Lotulia Yomiyom, Philip Yarapong, Marko Lodomo, William Kirangole, Stephen Angari & David Kamama

Date Delivered:

11 May 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Robert Cherukwo Chemrigai & another v Philip Lodama & 12 others [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Case Outcome:

Application allowed.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

LAND CASE NO. 2 OF 2021

ROBERT CHERUKWO CHEMRIGAI...................................................1

ST

PLAINTIFF

ANTHONY RUTO LOITARUK..............................................................2

ND

PLAINTIFF

VERSUS

PHILIP LODAMA.................................................................................1

ST

DEFENDANT

SIMON PALOKAPEL...........................................................................2

ND

DEFENDANT

DOMINIC MUKUTANO.....................................................................3

RD

DEFENDANT

LOWIWARENG LONGAR................................................................4

TH

DEFENDANT

CHRISTOPHER RUTO.......................................................................5

TH

DEFENDANT

LOCHILARUK WEPEGH..................................................................6

TH

DEFENDANT

ROBERT DIAKAPUS.........................................................................7

TH

DEFENDANT

LOTULIA YOMIYOM.........................................................................8

TH

DEFENDANT

PHILIP YARAPONG...........................................................................9

TH

DEFENDANT

MARKO LODOMO...........................................................................10

TH

DEFENDANT

WILLIAM KIRANGOLE..................................................................11

TH

DEFENDANT

STEPHEN ANGARI..........................................................................12

TH

DEFENDANT

DAVID KAMAMA.............................................................................13

TH

DEFENDANT

RULING

1.

The application dated

15/1/2021

and filed in court on

18/1/2021

has been brought by the plaintiffs under

Order 40 Rules 1, 4(1) & 5

of the

Civil Procedure Rules, Section 3A

of the

Civil Procedure Act.

The plaintiffs seek the following orders:-

(a) …spent

(b) …spent

(c) That an order of temporary injunction do issue restraining the defendants/respondents by themselves, their servants, agents from demarcating, allotting or dealing in any other manner the land known as Toghomo Community Land pending hearing and determination of the main suit.

(d) That O.C.S Marich Police Station do supervise and ensure compliance of the court order.

2.

The application is supported by the affidavit of the 1

st

plaintiff sworn on

15/1/2021

. The grounds on the face of the application are that the applicants herein are the legal representatives of

Sotot

and

Talai clans

whose members reside at

Toghomo Community Land

; that on or about

26/6/2020

the defendants registered a self-help group known as

Toghomo Sub-location Land Committee

and begun to demarcate and subsequently issued allotment letters to individuals without the consent of the plaintiffs’ clan; that the activities being undertaken by the defendants would delineate the suit land rendering plaintiffs’ clans members destitute; that the defendants actions amounts to dispossession of the plaintiffs clans and would suffer irreparable loss which cannot be compensated by damages and that the plaintiffs have a

prima facie

case with probability of success.

The Response

3.

In response to the application the defendants filed a replying affidavit sworn on

20/4/2021

by

Simon Palokapel

the

2

nd

defendant, on his own behalf and on behalf of the other defendants.

Submissions

4.

On

8/4/2021

the court directed the parties to file their submissions and the application be disposed of by way of written submissions. I have perused the file record and found no submissions filed on behalf of the parties.

Determination

5.

The issues that arise in the instant application is whether an injunction should issue restraining the defendants from demarcating allotting or dealing in any other manner with the land referred to as Toghomo Community land pending hearing and determination of this suit.

6.

The applicants are apprehensive that their clans would be rendered destitute if the demarcation and allocation of the suit land continues. The propriety of the demarcation and allocation and the defendants’ locus in the demarcation exercise is under challenge.

7.

In their replying affidavit the respondents state as follows: that the application is bad in law in that the applicants have conceded that the suit land is undemarcated and the reference to Toghomo Community Land is therefore reference to an indeterminate expanse of land; that the respondents and their families live in Toghomo Sublocation and are in possession of land either as individuals or families or clans from which they eke out a living; that the orders sought would violate the respondent’s constitutional rights and visit hardship upon the respondents yet their ownership of parcels within the land is not under challenge. They aver that if any order should issue it should be directed at the Toghomo Sublocation Land Committee Self Help Group as an association.

8.

It is therefore clear that the defendants have not rebutted the plaintiffs assertion that they have formed themselves into a self-help group and that they are intent on demarcating the land in Toghomo. Their suggestion that the order should be directed at the self-help group goes against the holding of the court in matters such as

Kipsiwo Community Self Help Group v Attorney General and 6 Others [2013] eKLR

.

In any event that self-help group has not been enjoined as a respondent in this matter and I cannot issue an order against a non-party. What is of relevance to this court is that the respondents have had the opportunity to deny the allegation that they are the self-help group members and officials and they have not denied it and I must believe that they are.

9.

The allegation that the subject matter land is unascertainable may not matter in this case because the respondents have conceded that there is an administrative unit known as Toghomo and it should be presumed by this court that the land that is being referred to is located within that administrative unit.

10.

In this court’s view there must be a community residing within the land and if as the plaintiffs are stating the defendants are bringing in non-community members with the intention of allocating them land it is clear that the plaintiffs and others may suffer loss. In this court’s view the demarcation of land should be considered and implemented with the participation of the residents of the area concerned.

11.

I also find that the issues raised in

paragraph 6

of this ruling are best determined at the main hearing of the suit.

12.

I am satisfied that the applicants have in accordance with the test in the case of

Giella Vs Cassman Brown 1973 EA 358

demonstrated that they have a

prima facie

case against the defendants and that they may suffer loss that can not be compensated for by way of damages in respect of land that they may have resided on for a long period. Consequently and to avert any prejudice to any of the parties this court finds it necessary to allow the application by the plaintiffs.

13.

I therefore allow the plaintiffs’ application dated

15/1/2021

in terms of

Prayers Nos. (c)

and

(d)

thereof.

14.

I also direct that the plaintiffs shall file and serve their bundle of copies of documents to be relied on within

14 days

of this order and that the defendants shall file and serve their bundle of documents to be relied on within

14 days

of the last date on which service of the plaintiff’s bundle is due and no documents shall be filed outside the given time frames without leave of court formally applied for with justification.

15.

This suit shall be mentioned on the

8

th

June 2021

for issuance of a hearing date.

It is so ordered.

DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 11TH DAY OF MAY, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.