[2021] KEELC 2634 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONEMTN & LAND COURT

AT MILIMANI

ELC NO. 360 OF 2018

ELIZABETH KILELE.....................................................................PLAINTIFF

-VERSUS –

FAITH NAITORE KIRIMI.................................................1STRESPONDENT

(Sued as the administrator of the estate of late Kirimi M’muna)

MERCY MAKENA KIRIMI..............................................2NDRESPONDENT

(Sued as the administrator of the estate of late Kirimi M’muna)

NICHOLAS KIMATHI KIRIMI..........................................3RDDEFENDANT

(Sued as the administrator of the estate of late Kirimi M’muna)

THE CHIEF LAND REGISTRAR.......................................4THDEFENDANT

THE NAIROBI CITY COUNTY..........................................5THDEFENDANT

RULING

1. The Plaintiff/Applicant filed a chamber summons dated 3rd July 2019 in which she seeks that her evidence be taken immediately under Order 18 Rule 9(1) of the Civil Procedure Rules. She also seeks that this suit be heard on priority basis.

2. The Applicant contends that she is a senior citizen aged 93 years at the time of filing this application and that her health is deteriorating as per the medical report by her doctor. The Applicant contends that she may not live long and thus wants her case expedited.

3. The Applicant’s application is opposed by the 1st Respondent through a replying affidavit sworn on 14th January 2020. The 1st Respondent contends that the hearing of this case should await the outcome of Criminal Case No. 616 of 2019 Republic –vs- Fresky Jepchirchir Bett & others where the accused are facing charges of conspiracy to defraud the 1st Respondent using fake title documents. The 1st Respondent argues that it is the same fake documents which are subject of the criminal case that the applicant intends to use yet she has disowned the same documents in a statement to police where she claims that she was duped into selling the suit property. The 1st Respondent further argues that in her written statement to the police, she admitted selling the suit property to her late husband.

4. I have considered the Applicant’s application together with the Applicant’s submissions. The 1st Respondent did not file any submissions and if any was filed, then the same are not in the court file. The only issue for determination is whether the Applicants has shown sufficient cause to the satisfaction of the court that her evidence should be taken under Order 18 Rule 9(1) of the Civil Procedure Rules.

5. The Applicant had filed an application accompanied by a supporting affidavit which had no annextures. The court asked the Applicant’s Advocate to avail the annextures. When the Advocate submitted another application dated 3rd July 2019, the supporting affidavit did not contain the medical report which was referred to in paragraph 3 of the supporting affidavit.

6. Whereas the Applicant states in paragraph 2 of the supporting affidavit that she was 93 years old at the time of filing the application, a copy of her identity card annexed to the supporting affidavit shows that she was born in 1946. She should have therefore indicated that she was 73 years old. In her statement to the police in 2018, she stated that she was 98 years old. It is therefore clear that the applicant is lying on oath.

7. There being no medical report to confirm that she is suffering from any ailment and the court having found that she has lied about her age in more than three occasions, I find that she has not demonstrated that she has sufficient reason to have her evidence taken immediately. I proceed to dismiss her application with costs to the 1st Respondent.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 14TH DAY OF JUNE 2021.

E.O. OBAGA

JUDGE

In the virtual presence of: -

Mr Lagat for Plaintiff/Applicant

Court Assistant: Okumu

E.O. OBAGA

JUDGE