A protracted land Dispute pitting, Sakawa Agency Managing Director, Evans Momanyi and Hassan Magadi, over the ownership of a piece of land in Timbwani, Likoni ended yesterday.
In a major victory for Momanyi, Environment and land principal magistrate, Hon. G. Sogomo dismissed Magadi’s preliminary objection seeking Momanyi’s earlier suit struck out with cost.
Momanyi had moved to court seeking orders to have Magadi restrained from erecting structures on his 34 by 60 piece of land.
Momanyi, claimed to be the rightful owner of the land which is located at Maji Safi area, Timbwani in Likoni and wanted Magadi restrained from erecting any structure on the land as the matter for the same property was still pending in court awaiting determination.
In his sworn affidavit, Momanyi had sought temporary injunction orders restraining Magadi from entering into, occupying, trespassing, constructing or blocking the land.
Momanyi had also accused Magadi for unlawfully erecting towers in the plot despite of there being a pending matter in Court for determination saying he acted with impunity without respecting the court.
Momanyi had also claimed he had been denied his right to exclusive and impeded right to possession, use and occupation of the plot despite of him being the rightful owner.
The affidavit further indicated that in September Magadi illegally entered, trespassed and cleared Momanyi’s land and proceeded to erect structures.
In his ruling, Hon.Sogomo relied on Mukisa Bisquit Manufacturing company LTD Vs West End Distributors(1979) EA, 696 case and that of Electoral and Boundaries Commission Vs. Jane Cheperenger & 2 others(2015) in the supreme court of Kenya.
“the applicant has alluded to a pending land adjudication process in the general area of the suit land. Evidence of that can only be ventilated by way of cogent of evidence from averments in an affidavit with bleadings and the said notice as annexures thereto and not via the in limine objection that the defendant has invoked.
It then follows that to the objection as raised by the applicant contentious matters of fact that can only interrogated by way of evidence at trial or through a substantive motion, a far cry from scenario contemplated in Mukisa Bisquit and Cheperenger cases.
The defendant/Applicant’s preliminary objection dated 20th December, 2021 fails and for avoidance of doubt the same is dismissed with costs.” The ruling read in part.