A nephew of a man killed in the tragic Creeslough explosion has been ordered to leave the home of his late uncle.
Farmer Hugh Kelly (59) was one of 10 people who died when an explosion ripped through a petrol station in the Co Donegal village on October 7th, 2022.
Following Mr Kelly’s death, a row erupted between a nephew of Mr Kelly and his partner over the deceased man’s home and other lands at Bishop’s Island, Castledoe, Creeslough.
A courtroom battle for the house and lands has been ongoing at Letterkenny Circuit Court in recent months.
However, Judge John Aylmer has now granted an interlocutory injunction to the late Mr Hugh Kelly’s partner, Linda Gallagher, against Josie Kelly, whom she claimed was illegally occupying the property.
The case had been mentioned a number of times but when it was called yesterday, barrister for Ms Gallagher, Mr Gareth McGrory, BL, instructed by solicitor Frank Dorrian, said Mr Kelly was not in court and that he was not legally represented.
Mr Josie Kelly had been legally represented by barrister Mr Johnnie McCoy but he had come “off record” for the defendant who had indicated he was then going to the legal aid board.
Mr McGrory told the court that was six months ago and that there had been no communication from the legal aid board since then.
Previously, Judge Aylmer heard Ms Gallagher attended the property on October 15th, 2022, just a week after her partner had been killed, and discovered Josie Kelly had “wrongfully or illegally entered the dwelling and changed the locks”.
A locksmith was called and a voice was heard inside the property, which Ms Gallagher recognised as Josie Kelly, but the locksmith could not gain entry.
It was also alleged that Josie Kelly also placed padlocks on the gates and put a donkey on the land while Ms Gallagher had been in America towards the end of October.
The property was registered in the name of Hugh Kelly, who had lived in the house all his life. The property had been passed to him by his late mother, Sally Kelly.
Ms Gallagher sought an injunction to restrain the defendant, or agents acting on his behalf, from trespassing, entering or making use of the lands without the expressed authority of the plaintiff.
Mr McGrory said his client was also seeking an injunction to have the defendant repair any damage caused following the alleged illegal trespass.
Mr McGrory explained that Ms Gallagher, who was originally from Indiana in the US, had been in a relationship with the deceased. They both maintained separate houses, but there were several pictures of Ms Gallagher in Mr Hugh Kelly’s home.
The court heard Ms Gallagher had been left “distraught” at Mr Kelly’s sudden death and the deaths of the nine other people in the explosion, as well as suffering “shock, pain and sorrow” following the incident.
Mr Kelly said his late grandfather had wished the property to stay in the Kelly family, claiming he had invested over €100,000 on improvements to the property. He said he had also organised crops of hay and silage on the farmland.
He said he had lived at the property since 1984, save for the years of his marriage, until 2018 when he returned to live on the property.
Mr Kelly claimed none of the plaintiff’s possessions are in the house and that he always had a key and access to the house. “The property is my home,” he added.
Judge John Aylmer asked why Mr Kelly had not exhibited anything in support of his evidence.
“The absence is striking,” the judge said, noting he expected to see evidence that Mr Kelly has been living at the property since 2018 and of the €100,000 he said he had spent.
Judge Aylmer said last year that he was giving a short opportunity for the defendant to put evidence before the court “that one would expect to support a contention that he has been living there since 2019”.
When the case resumed this week, Mr McGrory said he had received a five paragraph affidavit from Josie Kelly after previous claims that he had invested substantial monies in the property of Mr Hugh Kelly.
He said however, that a striking feature of the case was that there was no documentation forthcoming which bore this out.
Having considered the application, Judge Aylmer granted an Interlocutory Injunction directing Mr Josie Kelly to leave the house and not to trespass on lands without the permission of the plaintiff, Ms Gallagher.
Costs were also granted to the plaintiff by Judge Aylmer as he remarked that this may well be the end of the proceedings.
Mr McGrory informed the court that his solicitor would ensure a copy of the order with penal endorsement is taken up from the Circuit Court Office and served personally on Mr Josie Kelly.