[2022] KEELC 493 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC NO. 56 OF 2021

EVANS SIMIYU SUNDWA AND 97 OTHERS.........................................PLAINTIFFS/APPLICANTS

VERSUS

TAWAI LIMITED & 16 OTHERS........................................................DEFENDANTS/RESPONDENTS

RULING

THE APPLICATION

1. The Applicants moved this Court under Certificate of Urgency vide a Notice of Motion dated 17/11/2021. The Application was brought under Order 40 Rule 1, Order 51 Rule 1of the Civil Procedure Rulesand Sections 1A, 1B, 3, 3Aof theCivil Procedure Act as read with Articles 40and159of theConstitutionof Kenya 2010 and other enabling provisions of the law. They prayed for the following specific orders:-

a) …spent

b) THAT this Honourable Court be pleased to issue an order of injunction restraining the 13th Defendant/Respondents (Eldoret Express CO. Ltd), their agents, directors, servants or assignees from in any way interfering with their possession, or by evicting, invading, trespassing, fencing off, and/or executing any orders till the plaintiffs/Applicants are heard judiciously pending the hearing of this Application inter-parties.

c) That this Honourable Court be pleased to issue an order of injunction the Defendant/Respondent (Eldoret Express Co. Ltd), their agents, directors, servants or assignees from in any way interfering with their business, evicting, ejecting, invaliding, trespassing, fending off and/or executing any orders till the plaintiffs/Applicants are heard judiciously pending the main suit.

d) THAT an order do issue to the effect that the Plaintiffs/Applicants have been condemned unheard and adverse orders issued to their detriment vide ELDORET ELC CASE NO. 87/2015 (Formally (sic) KITALE HCC NO.18 OF 2008).

e) THAT an order to issue directing the 14th and 15th Defendants/Respondents (Chief Land Registrar and Director of Survey) to ascertain the existence and authenticity of parcel titles namely L.R NO. 5707 (R) and 5707(6) as per the survey plan and file report in court.

f) THAT cost of this application be provided for.

2. This Court shall determine the Application by adopting the use of a simple format in the structure of the ruling. Thus, the Court breaks the structure into and discusses the Application under various heads as follows:-

a) The Supporting Affidavit and Grounds

3. The Application was based on a number of grounds and supported by the Affidavit of one Evans Simiyu Sundwa. The grounds were that the Plaintiffs/Applicants are innocent purchasers, members, occupiers and/or shareholders of part of the suit parcel of land namely L.R. No. 5707 measuring 646acres situated within Trans-Nzoia County. On diverse dates between the year 1995-2015 the Applicants purchased or bought shares from the1st Respondent through its directors, being the 2nd to12th Respondents. The Applicants contended that the directors of the 1stRespondent never involved the Plaintiffs/Applicants in their case wrangles between themselves and the 13th defendant/Respondent. They argued that there exist splinter groups within the 1st Defendant’s management and operation which resulted in wrangles between the 1stRespondent Company and the13thdefendant to the detriment of the detriment of the Applicants.

4. The Applicants contended that they were been condemned unheard (in Eldoret ELC No. 87 of 2015, as it became clear upon further analysis of the documents presented in support of the Application) because adverse orders issued against the 1st Respondent without their participation and/or involvement. They argued further that due to their non-participation in the suit land adversarial orders were issued contrary to the tenets or principles of natural justice. Their case was that on 23/06/2021 the Court issued orders of the eviction against the 1st Respondent (which means it applied to its members), in favor of the 13th Respondent without the 1stRespondent disclosing that it had more than 1000 occupierson the suit parcel of the land.

5. They argued further that the 1st Respondent did not disclose the existence of the Applicants and the 13th defendant did not enjoin the Plaintiffs as interested parties or trespassers. Their case was that they were innocent and bona fide members of the 1st Respondent, and they risked being evicted thereby causing a major humanitarian crisis to the general public. They thus posited that the restraining orders sought were of urgency.

6. The Applicants stated also that there was a high chance of chaos erupting, skirmishes and/or bloodshed due to the intended eviction thereby endangering the lives of those who were in occupation or possession on the suit land. They then argued that it was incumbent upon the 1st Defendant and 13th Respondents to ascertain the contested title parcel L.R. 5707(R)and L.R. No. 5707(6). Their case was that it was proper and just that the Director of Survey prepares a report based on the Deed Plan of No. 5707 IR No.18551 hence the interest of justice demanded that the orders sought be granted.

7. The Application was supported by the Affidavit of one Evans Simiyu Sundwa, sworn on 17/11/2021. He deponed that he had sought authority to represent the Applicants and he was conversant with the issues raised in the suit hence competent to swear the affidavit. Although he did not annex the authority to the Affidavit, the Court record shows that the said authority was filed on 24/11/2021 together with the Plaint.

8. The deponent then reiterated the contents of the grounds of the Application. First, they argued that they were innocent purchasers of the land in issue, namely, L.R. No. 5707(R) measuring (… - some information missing here) acres, curved out of the whole parcel of land namely L.R. No. 5707 IR No.18551 measuring746 acres. To support this fact, he annexed to the Affidavit a copy of the title and marked it as ESS ‘I’. He then annexed to the Affidavit and marked is as ESS ‘2’ a bundle of copies of share certificates and marked them as ESS ‘2’.

9. His deposition was that he and the others had been in lawful possession and occupation of the suit land, cultivating and ploughing it, and had developed their respective plots thereon. The parcel was curved out from parcel of the land LR No. 5707(R). He annexed to the Affidavit and marked as ESS ‘3’bundles of photographs showing the Plaintiff’s homestead.

10. He deponed further that the 1st Respondent, Tawai Limited and the 13thRespondent have had acrimonious wrangles between themselves over the suit land but they did not involve the shareholders who were the Plaintiffs herein. As a result, the Plaintiffs were condemned unheard. Although he did not state wherein that happened, it came out clearly that it was in Eldoret ELC No. 87of2015. Theirs was an argument that they were neither enjoined as parties nor sued as interested parties or trespassers by the 13thRespondent.

11. The deponent put it further that they came to know that they were condemned unheard and adverse orders issued, in form of an eviction, against the 1st Respondents to the detriment of the Applicants. He pointed out that it happened in Eldoret ELC Case No. 87of2015, in which case they did not participate, contrary to the rules of natural justice. He swore that the Applicants being innocent and bona fide members of the 1st Respondent company’s farm land comprising of thousands of occupiers they risked being evicted and a major humanitarian crisis ensue. He annexed and marked as ESS ‘5’ a copy of the eviction notice issued in Eldoret ELC 87 of 2015.

12. He emphasized on oath that there 1st Respondent had management wrangles with a splinter group’s fraudulent transactions which adversely affected them. He annexed and marked as ESS ‘6’ a copy of a letter dated 22/01/2017 in which the Registrar of Companies referred to the revocation of an erroneous CR 12 issued on 08/12/2016. He then deposed that the directors of the 1stRespondent had subdivided land parcel, namely, 5707/R (sic) being registered as Kiminini/Kiminini Block 7 (0-297). He annexed and marked as ESS ‘7’ copies of correspondence of the sub-division. Finally, he deponed that the Plaintiffs had demonstrated a prima facie case as provided in the case of Giella­­­­­­­­­­­­­­­­-Vs-Casman Brown warranting the court issue the injunctive reliefs sought, and he prayed for.

b) The Response the 1st, 4th, 8th, 9th and 12th Respondents

13. The Respondents opposed the Application through the Replying Affidavit of one George Mubichakani Malanga. It was sworn on 08/12/2021 and filed on 09/12/2021. In it he deponed that he was the Chairman of the Board of Directors of the 1stRespondent, Tawai Ltd. He also stated that he was sued as the 8th Respondent hence competence to swear this affidavit. He admitted that he and the 4th,9thand 12th Respondents were both members of the 1st Respondent and its Directors of the Board of Management. He stated the parties had duly instructed him to swear the Affidavit. He termed the Application as frivolous vexatious and an abuse of the court process.

14. He stated that the suit was incompetent, bad in law and fatally defective for multiplicity since the application ought to have been filed in Eldoret ELC No. 87 of 2015 (Formerly, Kitale HCC No. 18of 2008). He deponed that if at all the Applicants were genuine members of the1st Respondent, they were bound by the orders made by the courts of law for and against the 1stRespondent which was given an adequate right to be heard, in the Eldoret case. He termed them as busybodies and non-members of the 1stRespondents. Again, he stated that the Applicants were not purchasers as alleged.

15. The deponent stated further that the 1st Applicant was a stranger to the 1stRespondent since he was neither a shareholder nor purchaser. He then swore that the 1stApplicant had forged the signature of Rajab Kilwake Wanyonyibecause her known signature was very different from the purported signature as appearing on her receipts numbers 151,153,155,159,125,0462,163, 170,172,173,174,175,176and 177 copies of which he annexed to the Affidavit and marked them as GMM-1(a),(e),(f),(h) & (i).

16. He then gave the company policy or principle which was that the company requirement was that any company money earned whether by sale of shares or other income generating activity would be deposited into the company Bank Account. Otherwise it would be presumed as not being the 1st Defendant’s but for individual recipients for their private transactions.

17. He discounted the photographs exhibited as annextures to the supporting affidavit since they did not indicate who took them, the date and place he did so and the type of structure photographed. He then argued that the photos had no evidential value.

18. He also deponed that the purported allotment letters produced were not of the 1st Defendant. Instead they were forgeries. He swore that the Board of Directors had reported the matter of Kiminini Police Station and the station officers were in hot pursuit of the culprits who were likely to be arrested any time soon. He annexed copies of complaint letters written by the 1st Respondent to the Officer Commanding Station (OCS) Kiminini and marked them asGMM-2.

19. Of curiosity was that the deponent stated further that he had met and interacted with some of the people listed as Plaintiffs and he was shocked to learn that they were not even aware of the instant suit and some purported that their signatures were forged. Further to that he deponed that some of the purported Plaintiffs were dead. He indicated that the defence would be insisting that each of the purported Plaintiffs attend Court at the appropriate time. He gave an example of one Rosemary Nakhumicha Simiyu who is said to have died on 25/08/2018 but she was listed as Plaintiff/Applicant No. 42and she purportedly signed the instruction letter of authority to 1st Plaintiff and affidavit. He annexed a copy of her Certificate of Death and marked it asGMM-3.

20. He then deponed that the instant suit had been filed without leave of court hence contravened the orders which Hon. Justice Chemitei issued on 11/06/2019. He annexed the copy of the order issued in Kitale High Court Case No. 22 of 2018. He annexed a copy of the said order and marked it as GMM-4. He termed the suit as incompetent and fatally and defective. He sought its dismissal. He also contended that the threshold for the grant of an injunction as set out in Giella v cassman Brown (1932)EALR had not been met.

c) Replying Affidavit by the 1st, 2nd, 6th, 10th and 11th Respondents

21. The 1st, 2nd,6th, 10th and11thopposed the Application by way of a Replying Affidavit sworn by one Mathew Juma Khisa. It was sworn on 14/12/2021 and filed on 16/12/2021. He deponed that he too was one of the directors of the 1st Defendant. He stated that the 1stRespondent’s Board of Directors authorized him to swear the Affidavit also on behalf of the1st Respondent through a resolution made on 24/11/2021. He annexed a copy of the authority and marked it as MJK 1. He pointed out that he was the 6th Respondent and had authority to depone the Affidavit on behalf of the other respondents.

22. To him, he deponed that, the prayers (c), (d)and(e) of the Application dated 17/11/2021 had merit. His deposition was that the Applicants were members of the 1stRespondent by virtue of being allotted shares by the directors of the Company. He then deponed that the orders sought against the 13th Defendant ought to be considered because they were issued (by the Court in the Eldoret case) against the 1stRespondent and directed to it as a legal entity without considering its members, shareholders and or purchasers who were the Plaintiffs.

23. He contended that the case, Eldoret ELC 87of 2015, was between the 1stDefendant/Respondent (Tawai Limited) and the 13th Defendant (Eldoret Express Co. Ltd). He deponed that the Applicants were neither sued nor joined as parties to defend their proprietary interests. He then stated that the subject matter in the aforesaid suit was land parcel LR. 5707 IR 18551measuring 764 acres wherein some of the directors and the Plaintiff occupied a portion measuring over 200acres.

24. They too supported the idea that there was a likelihood of chaos erupting and there being bloodshed if the intended eviction was to be carried out. They then stated that this Court should determine or ascertain the contested title parcels L.R. 5707 (R)andL.R. 5707(6) and the latter did not exist and it did, it was obtained fraudulently. He produced and marked as MJK 2 a copy of the title.

25. He then alluded to mismanagement of the 1st Defendants and internal wrangles therein, alleging that there are more than elevendirectors whose association affected the operations of the Company which was detrimental to the Applicants. He stated that there were two factions within the 1st Respondent. One of them had gone ahead to subdivide the suit land giving rise to land parcel numbers Kiminini/Kiminini Block 9(0-297) without the involvement of the directors. He annexed and marked MJK 3 copies of correspondences between the directors and the surveyor. He then stated that the eviction order was in respect of L.R. No. 5707/6 whereas the surveyor’s plan indicated L.R. No. 5707(R). He then prayed for partial grant of the reliefs sought.

d) Supplementary Affidavit

26. Upon being served with the responses by the Respondents, the Applicants filed a supplementary Affidavit through one Evans Simiyu Sundwa. He did so on 16/12/2021. In the Affidavit he deponed that it was evident that there were wrangles in the 1stRespondent’s management and that the Applicants were not involved in the Eldoret High Court Case No. 87 of 2015. He reiterated that the Applicants were bona fide purchasers. He then sought to explain that the allegation of some members being deceased and signatures being forged were weird allegations by the 8th Respondent working in cahoots with the splinter group. He then deponed that the claim that said Rosemary Nakhumicha Simiyu died bordered on perjury. He annexed and marked as ESS 1 a copy of an Identity Card of the said person. He then swore that the other Respondents seemed to agree to the predicament the Applicants were in and did not oppose the Application hence it be granted.

SUBMISSIONS

27. The Application was disposed of by way of written submissions. The Applicants filed theirs on 16/12/2021 while the 1st,4th,8th,9thand 12th Respondents filed theirs on 09/12/2021. The 1st,2nd,6th, 10th and11th Defendants filed theirs on 16/12/2021.

28. In the Plaintiff’s submissions they raised a number of issues, namely, whether they were bona fide members and innocent purchasers for value, of which they submitted they were; whether the Plaintiffs were aware of the eviction orders issued in Eldoret ELC. No. 87 of 2021 (sic) (formerly Kitale HCC No. 18 of 2008), of which they stated that they were not up to when they learnt of them inOctober, 2021through service of the same by the bailiffs; whether they were condemned unheard, of which the relied on the principle of “audi alteram partem” (hear the other side) as a matter of natural justice, and they relied on Article 47(1) and(2)of theConstitution of Kenya, 2010 and two cases, namely Egal Mohammed Osman v. Inspector General of Police & 3 others [2015] eKLR and Judicial Service Commission v. Gladys Boss Shollei and another [2014] eKLR; whether the Respondents controverted the orders sought by the Applicants, of which they stated that some of the Respondents did while others (of a different faction) did not; and whether they had brought themselves within the requirements of the Giella v Cassman Brown case, of which they stated they did by summing it up that they satisfied the three requirements.

29. The 1st,2nd,6th, 10th and11thDefendants submitted that they did not oppose the orders sought. They submitted further that it was not disputed that the Applicants were members of the 1st Defendant and that they ought to be given an opportunity to be heard. They too insisted that in the event of eviction there was a likelihood of eruption of chaos.

30. The 1st,4th,8th,9thand 12thRespondents appear to have been left (others) all alone to oppose the Application. Their submissions were that to seek to stop the decree of a superior competent Court by another superior one was an absolute and that such a suit was duplicitous. The also submitted that on 11/06/2019, the High Court barred the parties herein from filing any suits involving Tawai Co. Limited without leave of the Court. They then stated that the present suit having been brought without such leave was incompetent and fatally defective. They refuted the point that the Application had met the requirements of theGiella v. Cassman Browncase. They emphasized that the Applicants had even forged some signatures of deceased persons and they (Applicants) were not genuine in their Application. They prayed that the Application be dismissed with costs.

ISSUES, ANALYSIS AND DETERMINATION

31. I anxiously and carefully considered the instant application, the grounds it was brought under and both affidavits in support. I also duly took into account that there were replying affidavits and submissions on the positions taken by the respective respondents both groups which took opposing sides as well. I gave due regard to the law cited and authorities relied on as well. I found that the instant matter raised at the interlocutory stage weighty issues which go to the root of the suit, particularly those by the 1st,4th,8th,9thand 12thRespondents. As I determined the merits of the Application I had to consider the said issues because granted that the said issues were successful to cause the prayers sought being denied, if the Court would not give their import in relation to the status of the Suit, they would have to be determined soon after, by way of preliminary objections and still the Court would have to come to similar conclusions. Prudence requires that they be considered at once. Therefore, I find the following as issues for consideration:

a) Whether the suit is defective for duplicity;

b) Whether the suit contravenes the orders made on 16/06/2019;

c) Whether the application is merited;

d) What orders to issue and who to bear costs?

32. Since this suit raises a number of issues some of which go to its root, it is proper to deal with them in an organized sequence beginning with those that, if merited, may determine both the entire suit. This is because once one succeeds, there would be no need to analyze the other issues. Thus, I start with the first one, namely, whether the suit is defective for duplicity.

33. The Applicants contended that the orders they sought to stop or have declared as having condemned them were issued by my brother or sister judges sitting in the Eldoret station of this Court. They gave the case in question as Eldoret ELC No. 87 of 2015(Formerly Kitale HCC. No. 18of 2008). It is clear that this Court is being called upon to act on orders issued by its sister Court. The prayers are not for review of the orders of my brother or sister judge but in a completely new or fresh matter. The Eldoret Court is not a subordinate Court to this one lest one would think that the Applicants ought to have moved this Court by way of judicial review.

34. Furthermore, the Applicants made a claim that they are innocent purchasers and or occupiers. This Court will not dwell so much on the import of the two terms or positions of some of the Applicants if it would be believed as such. But suffice it to say that if they are purchasers (of land in the area) then they are not members of the 1st Respondent because purchase of land from a shareholder or member does not qualify one to automatically be a member. What entitles one to me a member of a company is the purchase of a share or shares of the company. This they ought to have demonstrated clearly.

35. Secondly, if they are occupiers of part of the land, that makes them squatters or licencees by whatever way they may have come onto the land. In such circumstances they have no business interfering with the affairs of the company. A company’s business is run by its members in two levels: the shareholders through General and Special meetings, and the Board of Directors’ meetings. If the applicants are occupiers they cannot participate in any of the two levels. In essence the Applicants ought to have elected on who they are in relation to the Company (Tawai Limited). Mere presence on the company’s or the shareholders’ land does not entitle one to meddle with the affairs of the company.

36. One of the puzzling things that this Court was called upon to ponder about is the view, opinion and language of the Applicants about why the eviction orders of the Court given on 23/06/2021 should not be effected. The alluded to there being chaos, violence and bloodshed if that happened. With due respect, the Court cannot be hoodwinked into not issuing orders towards the ends of justice simply because some people or parties have purposed in their hearts or minds that they will disobey or disregard the of court orders though causing mayhem, breach of peace and violence. It is worth putting it to everyone, including the parties herein, that they ought to obey the law. This, in my view is blackmail to the Court. It does not matter whether the orders are for eviction or otherwise: obedience to the law is key. If it is legally determined, as it has in Eldoret ELC No. 87 of 2015, that the Applicants have a duty to move out of the land peacefully since it would be settled that it is not theirs. They do not have to purpose to die or harm themselves on it through meaningless and unlawful resistance. Ours as a country is not a man eat man society. We are a civilized nation whose citizens love and respect the rule of law. So much so that if one is ordered to move out of some else’s land he should do so peacefully. He should not ‘see bloodshed’. Having said that I now turn to the issues raised.

37. In urging the prayer for injunction as made in prayers (b) and (c) of the Application the Applicants brought out another prayer (d) that the Court declares that they were condemned unheard in Eldoret ELC Case No. 87/2015 (Formerly Kitale HCC No.18 of 2008)and therefore adverse orders were issued in the case to their detriment. I will not get into enumerating and explaining the rules of natural justice. But one of them – the right to be heard – has been brought into focus. There is no dispute that the Eldoret case exists referred to exists. All parties herein agree that there are valid orders in place in the matter. To make it clear, there is no doubt that the Court issued an order for eviction in the said matter: that was on 23/06/2021. A copy of it was Annexture ESS 5 of the Applicant’s Supporting Affidavit sworn by Evans Simiyu Sundwa. The parties in the Eldoret ELC No. 87of 2015 were Eldoret Express Company Limited vs. Tawai Limitedandthe National Land Commission. The Plaintiff in that case is the 13th Defendant/Respondent herein while the 1st Defendant in the case is now the 1stDefendant in this case. Only the 2ndDefendant in the case has been left out of the suit herein.

38. This Court decided to use the simplest of the explanations and illustrations possible in this ruling so that the parties herein will quickly and easily understand the issues at hand. Thus, I start by looking at the facts not in dispute as between the parties herein. It is common ground that the orders of 23/06/2021 arose from others issued earlier, on 19/11/2020 in the same case. There is consensus between the parties that the land parcels of land in that case were the same as the instant case. The only issue is that the parties keep referring to one of them as L.R. No 5707/RorL.R. No. 5707 (R). Otherwise the Applicants would not be complaining that they were “condemned unheard.” Therefore, what is not in contention is that, if the arguments by the Plaintiffs is anything to go by, they - the Applicants - should have been given a hearing in the Eldoret ELC No. 87 of 2015 but they were not.

39. Again, the Applicants argued that they were left out of the proceedings in the Eldoret Case by not being made parties as Defendants or Interested Parties. They contended that that would have been so because they were members or innocent purchasers of some of the parcels of land in issue hence they were condemned unheard when the Eldoret High Court No. 87 of 2015 proceeded to hearing in their absence. Further, they argued that the 1stDefendants/Respondents participated in the proceedings of the case in point but to their exclusion hence they were prejudiced. It is also clear from the facts before me that the proceedings in Eldoret ELC No. 87 of 2015 are concluded so far. That means that whatever the parties complain of which they should have been heard on is settled in that case. That is why they argue that they were condemned unheard. And if the issues therein are not concluded, then the parties have not been condemned unheard: they can join the proceedings therein and be given a hearing. But to the extent that the Applicants argue that they were condemned unheard, it means that the subject in that suit is settled. If it is settled, then to raise it in a separate subsequent suit is to go against the doctrine of res judicata.

40. The concept of res judicata is not a complex doctrine to understand. It simply means that a court of competent jurisdiction has made findings in merit on issues between same parties litigating under same title. The fact that a party excludes or includes one or more parties in a subsequent suit does not change the character and application of the doctrine. In Suleiman Said Shabhal vs Independent Electoral & Boundaries Commission & 3 Others [2014] eKLRthe Court of Appeal stated as follows:

“To constitute res judicata, there must be adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy.”

41. Section 7 of the Civil Procedure Act provides for the application of the doctrine in Kenya. It stipulates that:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has beenheard and finally decided by such court.”

42. In situations where a party raises the point that he was not heard, he is in essence saying that there was a competent forum which considered the same issues as the ones he is raising or they were directly or indirectly substantially is issue in that former matter but he was not given opportunity to be heard. Such opportunity could have been denied by virtue of his not being accorded a chance to speak if he was in the proceedings or he was left out of the proceedings. If the latter is, that is to say, that he was left out of the proceedings, he can only go back to the same forum, inform it that he should have been in the proceedings but for reasons beyond his control (not adverted to) he did not find himself in the proceedings, and then request that he be heard. The Applicants have not done so in the instant case.

43. When a party raises the point that res judicataapplies, it is a preliminary point of law which does not require evidence. The Court needs only to look at the law and the pleadings before it. A preliminary objection was defined in the locus classicus case of Mukisa Biscuits Manufacturing Ltd. vs West End Distributors Ltd. [1969] E. A. 696. If it succeeds, it disposes of a matter.

44. One thing that is clear, from the facts laid before this Court through the Replying Affidavits of is that the Applicants were subsumed in the title of the 1st Defendant in the Eldoret ELC No. 87 of 2015. They still argue that they are members of the entity, Tawai Limited. They cannot run away from the fact that when Tawai Limited litigated the matter in Eldoret ELC No. 87of 2015 it did so in its capacity as a company which acted on behalf its members, of whom they are, if their argument would be taken to be true. Tawai Limited is a limited liability company whose members operates through the Board of Directors as the law provides, and they do so as a collective. There is no severance of the members unless and until the company is would up or ceases to exist. It is immaterial whether it has factions or splinter groups. I do not want to deal with the doctrines of separate entity established in the case of Salomon v. Salomon & Co Ltd [1897] AC 22 but it is important to remind the Applicants and some of the Respondents herein of the import of that case. In conclusion, this Court is of the view that this suit is res judicata and cannot therefore be properly entertained.

45. For the reasons above, I do not wish to spend time and other resources on the issue of this suit being one of a multiplicity of suits. However, it is without a doubt that once the Applicants knew that there were issues they should have been heard on in Eldoret ELC 87 of 2015, they ought to have moved the Court in the same matter so as to avoid another suit being filed and raising the same issues. It was not open for them to file another suit hence creating a multiplicity of suits.

46. In any event this is a court of competent jurisdiction and of the same level and is actually the same as the one sitting in Eldoret only that it has the Eldoret ELC Registry which functions the same way as the Kitale one. In filing the suit to stop the execution of the eviction orders issued in the Eldoret Court, the Applicants wish to indirectly treat and view the Eldoret Court as one whose orders are subject to Judicial Review. They may not have stated that they have filed an application for Judicial Review but by coming to this Court complaining of the fact that they were condemned unheard, they want this Court to declare the process followed by the Court in Eldoret a nullity. This is akin to moving the Court to make an order for judicial review over the decision of my brother/sister judge. It is not possible. On that account the Application and suit must fail.

47. Turning to the issue that whether the suit contravenes the orders made on 16/06/2019, it requires this Court to examine the order and compare it with the circumstances herein. The order referred to and its import was introduced into these instant Application through the Affidavit of one George M. Malanga, the 8th Respondent. It was sworn on 8/12/2021and it annexed the said order in support of his deposition at paragraph 19 where he stated that the suit contravened the order. Therefore, at paragraph 20 he termed the suit as incompetent and fatally defective. The order was attached as annexture GMM-4of the Affidavit.

48. This Court had the occasion to examine the order. It was issued on the said date in Kitale High Court Civil Case No. 22 of 2018. The suit was instituted by the 1stRespondent against six people of whom the 2nd, 3rd, 7th, and 8th Respondents were defendants. The relevant order which is said to have been contravened stated as follows:- “ No Director, past or present or member and or shareholder or purchaser of the said parcel of land should file any suit, application or claim relating to the Plaintiff Company without obtaining the leave of this Court pending further directions from Court.” I perused the order further and found that the parcel of land in question is L.R. No. 5707/R, which is the same parcel of land referred to in these proceedings.

49. When the issue was raised by the 1st, 4th, 8th, 9thand 12th Respondents, the Applicants and the rival respondents did not raise any fact to counter the same. Moreover, the rival Respondents on whose behalf the 1st Respondent played the ‘same side of league’ (I note here that the 1st Respondent who was with the others I have singled out above was represented by a different law firm again but this time round with the 2nd, 6th, 10thand 11th Respondents did not oppose the Application again did not rebut the existence of the said order to date. It is absurd.

50. Absent of an order to the contrary of the annexture GMM4, I find that the suit was instated by purchasers and or members or shareholders of the 1st Respondent but without any leave of the Court. It is therefore incompetent, fatally defective and should be struck out.

51. Striking out as I do is a painful step but if the Plaintiffs did not comply with the law (order), there is little this Court can do. And as I do so, the other disturbing issue that was raised was that the suit was brought by or on behalf of some people who are said to be dead.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 22ND DAY OF MARCH, 2022.

DR.IURFRED NYAGAKA

JUDGE, ELC, KITALE