[2019] KEELC 2204 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERUGOYA

ELC MISC. APPLICATION NO. 4 OF 2019

EMMA WANJIRA KAGETE.........................................................APPLICANT

VERSUS

MARY WAMBURA MBOI.........................................................RESPONDENT

RULING

BACKGROUND

The applicant vide a Notice of Motion dated 7th February 2019 filed under a certificate of urgency sought the following orders:

(1) Spent.

(2) That the Honourable Court be pleased to issue eviction order removing and/or restraining the appellant, her agents, servants, employees or any other person herein from entering, trespassing into, farming on, or in any other way interfering with Village plot No. 28, 38 and 47 and farm plots No. 170, 173, 709, 778 and 931 situated at Kangai Location pending hearing of this application inter-parties.

(3) That the Honourable Court be pleased to issue a mandatory injunction against the defendant/respondent whether by herself, her servants, employees or agents or otherwise howsoever to deliver vacant possession of the

suit property to the applicant and to remove any materials thereon deposited or caused to put on the said property Village plot No. 28, 38 and 48 and farm plots No. 170, 173, 709, 778 and 931 until this application is heard and determined.

(4) That the Honourable Court be pleased to issue an order for compensation for illegal occupation and denial of quiet enjoyment of the suit property.

(5) That the Honourable Court be pleased to direct the O.C.S Sagana Police Station to enforce the Court orders.

(6) That the costs of this application be provided for.

(7) That the Honourable Court be pleased to issue any such further orders it deems fit and convenient in the circumstances of this case.

The application is supported by 25 grounds shown on the face of that application and an affidavit sworn by the applicant the same date. The supporting affidavit is further supported by numerous documents.

In a replying affidavit sworn on 15th February 2019, the respondent opposed the said application. The replying affidavit contains numerous documents in opposition to the application.

APPLICANT’S SUBMISSIONS

The applicant submitted that she is the only wife of the late ELIJAH KAGETE MANUBE who died on 24/3/2009 having been married to him under Kikuyu Customary Law in the year 1994. She stated that her late husband was the registered proprietor of plots number 170, 173, 709, 931, 945 Nguka and Village plots number 28, 38 and 47 situated at Kangai Location. It is the applicant’s case that her and the respondent have been litigating in various matters which were appealed to appellate Court and all throughout she has lost as against her. In all these previous cases, the respondent was seeking an order to be recognized as the wife of her late husband ELIJAH KAGETE. The applicant also submitted that the respondent has been utilizing the suit plots with the help of the applicant’s in-laws who did not want her to inherit their son’s Estate. She stated that her in-laws even managed to kick her out of her matrimonial home and prevented her from utilizing the plots which they had acquired with her late husband. In conclusion, the applicant submitted that since the respondent was not able to prove that she is the wife to the late ELIJAH KAGETE and after exhausting all the legal processes and loosing every case, the only recourse available to the applicant was to file this Miscellaneous application to have the respondent evicted after she lost the appeal.

RESPONDENT’S SUBMISSIONS

The respondent on her part submitted that she is the legitimate wife of the late ELIJAH KAGETE and that they got married in the year 2002 and were blessed with one issue namely Emmanuel Cubi Kagete. She annexed copy of the birth certificate of their son. The respondent further submitted that when she got to know that the applicant had obtained letters of administration for the Estate of the late ELIJAH KAGETE behind her back, she filed an application for revocation of grant which is still pending being Succession Cause No. 1 of 2012 (Kerugoya). The respondent contends that the applicant is guilty of the doctrine of sub-judice by filing the instant suit when there are previous suits filed which are still pending before Courts of competent jurisdiction.

ANALYSIS AND DETERMINATION

I have considered the application and the supporting affidavit. I have also considered the replying affidavit and the submissions by the parties. I have also considered the applicable law. The applicant is seeking an order of eviction against the respondent from the suit property being Village No. 28, 38 and 47 and farm plot numbers 170, 173, 709, 778 and 931 situated at Kangai Location. The applicant is also seeking a mandatory injunction against the respondent to deliver vacant possession to the applicant and to remove any materials deposited on the said properties. The suit properties are said to be owned by the late ELIJAH KAGETE (deceased) which they acquired jointly with the applicant. The applicant has not attached a green card or any other documents showing that the applicant is the registered owner or has a legitimate interest in those properties which is capable of being protected by a Court of law.

A copy of a letter purported to have been issued by Nguka Swamp Committee attached to the application herein dated 3/10/2012 is a mere paper with no letter head which is incapable of conferring any interest on the suit plots to the applicant. The letter is not provided for anywhere under the Irrigation Act Cap 347 Laws of Kenya or the Regulations made thereunder. To my understanding, any area of land designated to be a National Irrigation Scheme is vested in the Board who will be responsible for the development, control and improvement under the Act.

The Irrigation (National Irrigation Schemes (Regulations, 1977 provides at regulation 5 (1) (2) and (3) as follows:

“5 (1) Every licence shall be in the form in the First Schedule, and shall be prepared in duplicate, the original shall be given to the licensee and the duplicate shall be retained by the manager.

(2) The manager shall maintain a separate register in which he shall enter the name of every licensee, the number of his holding and the names of his authorized dependants.

(3) The manager shall also maintain a separate register in which he shall enter the name of any successor nominated by the licensee under Regulation 7, together with the number of the holding in respect of which the successor has been nominated”.

Again Regulation 7 provides as follows:

7 (1) A licensee may, at any time after the date of being granted a licence, nominate in writing to the manager, another person to succeed him as licensee in the event of his death, and a licensee may at any time, in writing to the manager, revoke or alter the nomination which may have been made by him.

Provided that no person nominated as successor may succeed until he has attained the apparent age of eighteen years; if he has not reached that age, his guardian under Customary law may, within one month of the licensee’s death, and with approval of the manager, appoint a person to act on his behalf until the successor is of age.

(2) No person nominated as a successor may succeed without the approval of the Committee…….”.

Regulation 4 also provides as follows:

“4. Any person who resides in, carries on business in, or occupies any part of the Scheme or grazes any stock thereon shall, unless he is the holder of a valid licence granted to him under those regulations by the manager with the approval of the Committee or is the authorized dependant of such licensee, be guilty of an offence”.

It is clear from the regulations under Section 27 of the Irrigation Act Cap 347 that any persons who resides, occupies or carries on business in any part of a Scheme designated as a National Irrigation Scheme without a valid licence granted to him by the manager with the approval of the committee is guilty of an offence. The plaintiff in this case has not shown that she is the holder of a valid licence granted to her under Section 27 of the National Irrigation Act or that she is the authorized dependant of such a licensee. The applicant has not also demonstrated that the alleged ELIJAH KAGETE MANUBE was a licensee registered in accordance with Section 27 of the National Irrigation Act and that the alleged ELIJAH KAGETE MANUBE nominated her as his successor pursuant to Regulation 7 indicating the number of the holding in respect of which she has been so nominated. It is clear in my mind that the Village plots and the farms plots which are the subject of this suit are properties of the Mwea Irrigation Settlement Scheme managed through the National Irrigation Board. The Irrigation Act Cap 347 Laws of Kenya provides that it is only the National Irrigation Board who are vested with the power to design, supervise and administer all land under the National Irrigation Schemes. The orders being sought by the applicant are capable of usurping the powers and authority of the Irrigation Board if granted. It is only the National Irrigation Board which has the power and mandate of appointing and approving a licensee or a proposed successor nominated by a licensee through its established Advisory Committees. That obligation cannot be delegated to any other entity not even the Courts and tribunals. The orders being sought in this application have the ability to take away statutory responsibilities given by Parliament to a statutory body. I also note that the applicant is seeking eviction and mandatory orders which are drastic orders through a miscellaneous application. It is trite law that an action for eviction to succeed must strictly adhere to the provisions of Section 152 (a) and (h) of the Act. The applicant in this case has not adhered to the strict provisions of the law.

In the case of Wambui Gikwa Vs Paul Kimani Muraba ELC Misc Application No. 16 of 2017 (Kajiado) (unreported), C. Ochieng J.stated as follows:

“In the instant suit, the Court notes that the suit is a Miscellaneous application. There is no plaint. Eviction orders sought are serious orders, and this suit should have been instituted properly as per the Civil Procedures Rules and the laid Act”.

I agree with the decision of the learned Judge. In the upshot, I find and hold that the Notice of Motion application dated 7th February 2019 lacks merit, bad in law and an abuse of the Court process. The same is hereby dismissed with costs to the respondent.

READ and SIGNED in open Court at Kerugoya this 28th June, 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. Ms Ann Thungu

2. Ms Nyangati holding brief for Mr. Ondieki