The Court of Appeal in Kisumu has declined to issue a temporary injunction stopping the eviction of trustees of Seventh Day Adventist (SDA) Church Millennium from a disputed piece of land.
The decision was rendered by a three-judge bench comprising of Justices Hannah Okwengu, Gatembu Kairu, and Hellen Omondi.
The case involves two parcels of land, Block III/153 and Block III/649 in Kisii Municipality, which the trustees (applicants), led by Joshua Abuga, argue were wrongfully conflated.
The Environment and Land Court (ELC), Kisii, had initially ordered the eviction of the trustees from Block III/649, following a ruling in favour of the Child Welfare Society of Kenya.
"Given the background to this case where the trustees' suit was actually dismissed for being res judicata, and the fact that the trustees have not filed any appeal against the judgment dated November 3, 2022, in which their suit was dismissed, the intended appeal against the order declining to review the orders that were issued by the High Court pursuant to that judgment lacks substance," said the Judges.
The Judges noted that the trustees had failed to present a substantive arguable appeal, labeling their motion as frivolous and an attempt to delay the respondents from benefiting from their judgment.
"The trustees having failed to satisfy the first requirement of arguability, and since it is imperative that they satisfy both limbs of the twin principle of arguability and the nugatory aspect, we do not find it necessary to delve into the nugatory aspect as it is evident their application dated December 5, 2023, fails."
The conflict traces back to a judgment by the ELC, Kisii on November 3, 2022, ordering the immediate eviction of the trustees from Block III/153, which was later converted to Block III/649. The trustees contended that the execution should have been specific to Block III/153, which is smaller in size compared to Block III/649.
Upon dismissal of their motion for review by the ELC in September 2023, the applicants sought an injunction from the Court of Appeal to restrain the respondents from evicting them from Block III/649 pending the hearing of their appeal.
In their affidavit, the applicants, represented by Peterson Ondicho, said they had “religious and sentimental value to the property,” which they have occupied for over a decade. They argued that the eviction would cause irreparable loss to the church and its followers.
Conversely, Irene Mureithi, Executive Director of the Child Welfare Society of Kenya, asserted that Block III/649 rightfully belongs to the Society and is utilised as a home for vulnerable children. She accused the applicants of subversive activities aimed at land grabbing.
"The trustees' nefarious activities caused us to file a suit, that is, Kisii ELC Case No. 220 of 2017 and obtain a permanent injunction restraining them from trespassing and interfering with our' property which was Block III/153 (converted to Block III/649)," she said.
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