[2018] KEELC 3578 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT CHUKA

CHUKA ELC CASE NO 226 OF 2017

DAVID KAMUNDI MURANGA …………………………………… PLAINTIFF

VERSUS

CHARLES NJAGI KANGA……………………….…………...…. DEFENDANT

RULING

1. This application is dated 6th November, 2017. It states that it has been brought to court under Sections 1A , 1B, 3 and 3A of the Civil Procedure Act and Order 1 Rule 10 of the Civil Procedure Rules and Article 40 and 50 of the Constitution of Kenya.

2. The application seeks the following orders:

1. That the Applicants/Interested parties in this case (sic).

2. That this honourable court be pleased to stay its orders of 17th October, 2017pending hearing and determination of this application or as the court may direct.

3. That this honourable court be pleased to set aside the judgment delivered on 17th October, 2017 as the same was obtained though an abuse of the court process, fraud and perjury and have the same heard with all the parties and consolidate the same with CHUKA ELC NO. 116 of 2017 formerly MERU HCCC NO. 83 of 2009.

4. That the costs of this application be provided for.

3. The application has the following grounds:

a) That the applicants live on land reference No. Muthambi/Lower Kirimba/1604 as their father left to another county and lives in Tigania.

b) That the said land is ancestral land and cannot be sold without consent of the family.

c) That the defendant’s father purported to sell the land to the plaintiff and an objection was made and parties were advised by land control board to go to court.

d) That HCCC No. 83 of 2009 was filed in Meru and is now this court’s suit No. 116 of 2017.

e) That the defendants have conspired to cheat the court and get an order to circumvent the hearing of this court’s case No. 116 of 2017 formerly Meru HCCC No. 83 of 2009.

f) That the intervention of this court is necessary to avoid orders obtained through abuse of the court process.

DATED AT MERU THIS 6TH DAY OF NOVEMBER, 2017

MAITAI RIMITA & CO.

ADVOCATES FOR THE INTERESTED PARTIES

4. The application is supported by the joint affidavits of Charles Nyaga and Nicholas Mwiti which states as follows:

“We CHARLES NYAGA and NICHOLAS MWITI of P. O. Box 75 CHUKA make oath and state as follows:

1. That we are the Applicants/Interested Parties herein and therefore competent to make and swear this affidavit.

2. That the subject matter herein is Land Reference No. MUTHAMBI/LOWER-KRIMBA/1604 which is our ancestral land.

3. That we live on the said land but in the years 2008 and 2009 the plaintiff in this case started telling us that we were on his land and should be evicted.

4. That we learnt that the defendant/our father had secretly attempted to sell the land to the plaintiff.

5. That the defendant and the plaintiff know that the land belonged to us and could not be sold without our consent and therefore we moved to court.

6. That we filed High Court Civil Case No. 83 of 2009 at Meru which was transferred to this court and registered as ELC NO. 116 of 2017 and comes for mention on 7th November, 2017. (Annexed is a copy of the plaint marked “CNii”).

7. That the court ordered that inhibition be registered against the Title awaiting hearing of the case.

8. That on 2nd November, 2017 the plaintiff herein came with a judgment in this case and threw it at us asking us to move from the land. (Annexed is a copy of the same marked “(CNii”).

9. That we were surprised since we were waiting for our case which is fixed for 7th November, 2017 and we (sic) to see our advocate.

10. That our advocate was also surprised and we all learnt that this was a separate and different case filed by the plaintiff in conspiracy with the defendant to fool and cheat the court to avoid full hearing of our case.

11. That we are advised and believe the advice to be sound that what the parties did in this case was in contravention of the Rules and Practice of this court.

12. That we are further advised that the fraudulent judgment obtained by the parties by not disclosing the truth to the court is obtained through an abuse of the process of this court and should not be allowed to stand.

13. That the parties are rendering us landless and injustice will be visited upon us unless this court intervenes.

14. That the contents of this affidavit are true to the best of our knowledge, information and belief.

5. On 30th April, 2018, Miss Munga of Maitai Rimita & Co. Advocates told the court that the Consent judgment delivered on 30th April, 2018 in ELC 116 of 2017 had compromised and collapsed this application. She asked the court to note this fact and to take the necessary action.

6. I agree that this application has been compromised. I note that filing submissions as earlier ordered by the court is veritably pyrric and unnecessary.

7. In the circumstances, this application is dismissed with no order as to costs.

Delivered in open court at Chuka this 30th day of April, 2018 in the presence of:

CA: Ndegwa

Miss Munga for the applicants

David Kamundi Muranga – Plaintiff

Charles Njagi M’Kanga – Defendant

Charles Nyaga – 1st Interested Party

Nicholas Mwiti – 2nd Interested Party

David Kamundi Muranga – Plaintiff

P. M. NJOROGE

JUDGE