REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 252 OF 2017

OCS KABRAS POLICE STATION...........................................APPLICANT

VERSUS

JIMMY HABIL MKIMBO..............................DEFENDANT/RESPONDENT

RULING

The application is dated 23^rd November 2020 and is brought under order 24 Rule of the Civil Procedure and Section3 3A of the Civil Procedure Act seeking the following orders:

1. That the honourable court be pleased to grant a stay order to enable them weigh the situation on the ground.

The application is based on inter alia the following grounds that there is bound to be serious casualties both on the side of the public and the police. That due to the imminent resistance from both parties there may be no peace and a good opportunity to live on the said land because of the hostility.

The respondent submitted that the motion under reference is a nonstarter and fatally defective. That the motion is purportedly drawn and filed by the ODPP giving the false impression of a criminal prosecution yet there is no prosecution and the ODPP is and cannot be involved herein. That despite being named as a respondent in the aforesaid motion, the same was neither served upon his lawyers on record nor himself thus violating his right to a hearing in a matter affecting his fundamental rights. That the suit herein arises from an originating summons instituted by the substantive applicants herein dated 20^th July, 2015 in which among other things they sought for orders that they had acquired land parcel No. S/Kabras/Shamberere/367 hereinafter the suit parcel by adverse possession. That vide Kakamega HCCC No. 513 of 2014 the original suit where he was the applicant which rendered the said summons res judicata the court had ordered eviction and following the said orders the applicants were indeed evicted from the suit parcel.   That the applicants then instituted the present suit without disclosing to court the earlier proceedings and based on this suit they re-entered the suit parcel.  That after the period within which the substantive applicants herein were required to freely vacate the suit parcel expired without the applicants complying, he engaged auctioneers who obtained orders of eviction and an order for provision of security by the applicant OCS, Kabras Police station to assist them execute the eviction orders issued herein on 28/2/2019 were renewed by this court on 4^th August, 2020.

This court has considered the application and submissions therein. The applicant submitted that there is bound to be serious casualties both on the side of the public and the police. That the Ambunya family has pulled in the extended family and the Boda Boda Association to resist any eviction. That the situation is tense on the ground and there is fear of extention of violence if the eviction is carried out and could result in serious casualties. I find that the situation on the ground is tense and the applicant needs more time to assess the same. For the sake of public interest I find that this application is merited. I grant stay on the eviction order for the next six months. No orders as to costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 24^TH MARCH 2021.

N.A. MATHEKA

JUDGE