Onyango Wins Land Boundary Dispute Case!
There is no client as scary as an innocent man! On a warm afternoon in December 2020 while walking along the shores of __ beautiful Lake Victoria, I was distracted by an alert of an incoming call. A few minutes earlier, I had been enjoying the magical breeze blowing above the still and restful lake. At the time I had stepped out for the usual ritual I indulge in while at my father’s home in Kendu-Bay Town, located 40 kilometers south of Kisumu City. I was also recovering from the boundless feat of pain in my heart arising out of my eviction from my flat in Rongai, Delight Apartment, in late November, 2020. It was my business partner and colleague, Yuvenalis Kubwa, calling to inform me about the new legal task in the office. In fact, I felt I had lost interest because I was a man whose family was actually homeless. He assuaged this feeling and told me “Ray, if we win the case, we will earn a fee that will put you back on your feet! Okay?” In two days’ time, I found myself online learning about this case that would carry/bring me back to Nairobi!
In December, 2020, “Onyango” and “Ochieng” (not their real names) had been served with a court summons for a land claim and promptly instructed our litigation partners at the Legal Moran Centre.At the time they were reaching us, they lacked a proper understanding of what those papers were all about. They wrongfully thought of imminent danger. It’s apparent, they were served the court papers by a ruthless court process server like our very own, Jairus Jairo! We met online these clients who were physically in Bondo. We guided them on how to share their documents with [share with or transmit/send to] our Analytical Lions (RaynessAnalytica, llc) as well as with The Legal Moran Centre (Kubwa & Co. Advocates) platforms. When they complied, we noted something mischievous: these lawsuit papers had been drawn and filed by a law firm in Bondo, and stamped by a Court of Law in Bondo, but there was no case number indicated – something was terribly wrong.
Well, Yuvenalis handled the client-lawyer interview online via the Zoom platform. From the meeting the following facts were clarified: our clients’ neighbour, let’s call him Brian, had decided to increase the size of his piece of land by alleging that our clients had encroached on a substantive part of his land and built a permanent structure. In court, Onyango and Ochieng were the first and second Defendants, respectively, and the Bondo–Sub County Land Surveyor was the third Defendant; Brian, the Plaintiff, was represented by the BondoTown branch office of a Nairobi-based law firm. Why, we wondered, would a law firm serve a defendant papers without a case number? We asked!
Back in the office, we contacted Brian’s lawyers from the contact appearing on their suit papers. They confirmed that Brian was their client. We explained to them that The Legal Morans were intending to be on record to represent Onyango and Ochieng but the main point for our call was to be provided with lawsuit case number to ease filing our defence electronically. Brian’s lawyer agreed but explained that he was still held up in Court and he would request their office assistant to supply the case number. Upon following up with the secretary, she referred us back to her boss. We thereafter unsuccessfully tried reaching Brian’s lawyer for three days both on dial and email correspondence.
We assigned our office assistant to visit the court registry and secure the case file number. In the meantime, we perused Brian’s court papers. We identified all their errors and established our defence strategy. Briefly, in Brian’s 25-page lawsuit papers, dated 24th November 2020 and filed in court on 3rd December 2020. In his case against Onyango and Ochieng, he alleged that our clients unlawfully, wrongfully and illegally encroached upon his land, significantly breached his land boundary and subsequently erected an illegal fence/boundary. In addition, the family home that our clients had occupied for a considerable period of time was in Brian’s property, allegedly. It stands at a location approximately 100 feet from the current boundary. Brian also told the court that he had established a solid case hence both Onyango and Ochieng ought to be condemned to pay the costs and suffer for their unwarranted transgressions.
The Legal Knock Out!
On December 21, 2020, The Legal Morans responded to Brian’s claim by raising points of law in their preliminary objection. They objected to the hearing of Brian’s case, contending that Brian had failed to comply with the clear legal provisions, thereby ousting jurisdiction of the court. They urged the court to consider three key issues in its deliberation, namely: Whether the objection had merit; Whether Brian’s case was indeed based on a boundary dispute, and, lastly, whether Brian or Onyango and Ochieng should bear the cost upon losing the case? Essentially, they stated that Brian’s suit was based on a boundary dispute which ought to be determined by the Land Registrar with the scientific help of the Land Surveyor hence the suit was filed prematurely to intimidate Onyango and Ochieng and as a deliberate waste to precious court’s time. They further urged the court to allow their objection and order Brian to pay costs, reminding the court to interpret the law correctly.
The court gave a hearing date to determine the above issues. But a day before the hearing, which we had anticipated to be conducted in physical open court, Brian’s lawyer clandestinely notified the court registry that he would argue his case online. We were not advised about the sudden change. Nevertheless, The Legal Moran team traveled to the Bondo law courts and the hearing proceeded. From the virtual court hearing conducted via Microsoft Teams platform, one could tell that Brian’s lawyer was attending the hearing from the comfort of his office.
Court Rules That Onyango Wins!
On February 19, 2022, a ruling was delivered virtually via Microsoft Teams platform. The Court justified every reason for its decision. The killer paragraph read:
As jurisdiction is everything I down my tools and accordingly strike out the plaintiff suit with cost to the 1st and 2nd defendant for want of jurisdiction. The preliminary objection on the issue of jurisdiction is upheld as the suit has been filed prematurely.
Even before the court could finish reading the above ruling, Brian’s lawyer left the platform abruptly amidst the live session. That was disrespectful! We only heard from Brian’s lawyer when we demanded our legal cost amounting to Ksh. 1,200,000/=. They have since disputed that cost saying that its overly exaggerated. Unfortunately, we might be forced to go to Court to recover the costs. I’m glad that justice was served!
*The names published in this news brief are fictious and a creation of the author. The dates and facts are however accurate. We endeavor to uphold the lawyer-client privilege consistently.
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