[2020] KEELC 3584 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC MISC. CASE NO. 50 OF 2019

FRANCIS LUCAS NAMWIBA............APPLICANT

VERSUS

1. FELISTER WABURA KANENJE

2. JULIA MURA

3. KEVIN M. WAFULA............RESPONDENT

RULING

The application is dated 8th October 2019 seeking the following orders;

1. That this application be certified as urgent and be heard exparte in the first instance.

2. That leave be and is hereby granted to hear this application on priority basis.

3. That there be a stay of execution of the decree orders made on 4th January, 2019 in Senior Principal Magistrate Court at Mumias Law Courts and eviction orders issued on 26th June, 2019.

4. That this honourable court be pleased to set aside the orders made on 4th January, 2019.

5. That status quo orders of maintenance given by honourable High Court Succession Cause No. 263 of 2002 court to the effect that no disposal of the subject matter on 11th day of October, 2016 be maintained.

6. That an order of injunction be issued restraining the defendants/respondents herein, their agents, servants and or relatives from constructing houses or structures on, cultivating, planting, harvesting crops from and or dealing in any manner whatsoever with the suit land herein L.R. East Wanga/Mung’ang’a/1431.

7. That costs of this application be provided for.

It is premised on the grounds that the application herein is urgent and deserves to be heard on priority basis it had already been filled during the most recent High court vacation on application dated 4th September, 2019 in the High Court Succession Cause No. 263 of 2002 file and taken to Kapenguria duty vocational judge then taken back to this honourable High court of Kenya at Kakamega then referred back to duty vocational judge at Kisumu High court of Kenya then referred back to Kakamega Succession High Court which ordered the applicant to file the same application to Environment and Land Court at Kakamega High Court. That upon the application dated 4th September, 2019 that came up for hearing under certificate of urgency dated 30th September, 2019 before Hon. Justice J. Njagi, it was ordered that the application was seeking for stay of execution on an Environment and Land Court matter – Mumias ELC No. 8 of 2018 in a succession Cause No. 263 of 2002 at High Court of Kenya Kakamega. That the said court has no jurisdiction to intervene in a matter involving the jurisdiction of ELC. The applicant therefore to file this application dated 4th September, 2019 before an ELC Judge and issued on 1st October, 2019 because the respondents herein, their servants and or relatives have invaded the applicant’s land in which he has been residing since 2014 until recent evictions orders. That the applicant was never aware of High Court Succession Cause No. 263 of 2002 court in the respect of the deceased Barasa Kanenje Manya. That the applicant had filed an objection on 16th June, 2016 and the same is being heard and active awaiting judgment/ruling in honourable Succession High Court of Kenya at Kakamega. That the defendants/respondents filed Environment and Land Case No. 34 of 2017 in the honourable ELC High Court of Kenya at Kakamega against the applicant after the applicant had filed objection in honourable Succession High Court of Kenya at Kakamega to counter the Succession Cause No. 263 of 2002 at Succession High Court of Kenya Kakamega. That the Environment and Land Case No. 34 of 2017 in the honourable ELC High Court of Kenya at Kakamega was transferred as per its jurisdiction to Mumias Senior Principal Magistrate court and was registered with a new number in Environment and Land Case No. 8 of 2018 at Mumias Senior Principal Magistrate Court. That prior to the transfer of Environment and Land Case No. 34 of 2017 to Mumias Senior Principal Magistrate’s Court and given number Environment Land Case No. 8 of 2018 at Mumias Principal Magistrate court there was an order emanating from application dated 3rd August, 2017 of injunction to the respondents which the law courts of Mumias overlooked and decided to rule in the favour of the respondents with no application or an order to set aside injunction orders dated 17th August, 2017. That it is an abuse of court process for the Senior Principal Magistrate of Mumias Law courts to proceed and deliver judgments/ruling in favour of the respondents without orders to set aside the same as they are still in force and valid. That it is in the interest of justice for this honourable Environment and Land Court of Kenya to allow this application as prayed for and grant orders of stay of execution and that the orders sort be set aside on the annexed affidavits of Francis Lucas Namwiba awaiting outcome of succession cause No. 263 of 2002 and on any other grounds to be adduced at the hearing hereof.

The 2nd respondent submitted that, she is the daughter in law of the deceased BARASA KANENJE MANYA. That the she is the widow and wife to MOSES NURA KANENJE(deceased). That reason behind supporting this application is that the 1st and 3rd Defendant’s actions amounts to contempt of court and abuse of court process if orders of status quo obtained on 20th September, 2016 is anything to go by ( Annexure marked ‘ JAN’ – 1). That the original buyers one MICHARL NANDWA SUNDULI 1 acre (one acre) and one JAMIN UGAYA ANYULA 1 acre (one acre) sold their potions of land to CHARLES ASHIALI OMUTIMBA and JACKSON LUTTA MACHIO respectively. Who later sold the same parcels of land to FRANCIS LUCAS NAMWIBA (applicant) FRANCIS put up his home and developed it. That David Wafula Kanenje’s family sold their share and bought another parcel of land in Busia. That they agreed as a family before the then District Officer East Wanga Division that after succession process, the purchasers will be issued with their respective title deeds (Annexure marked ‘JAN’ -2)

The 3rd respondent submitted that the application herein is res judicata as this honourable court dealt with the matter in Environment and Land Court case appeal No. 7 of 2019 on 3rd July, 2019. Annexed herein is a copy of the application dated 19th June, 2019 together with the attached appeal dated 5th April, 2019 marked as “KW-2”. That the applicant is seeking for substantive rights in law through a miscellaneous application which is not the correct procedure in law. That the application herein does not meet the threshold set out under order 42 rule 6 of Civil Procedure Rules for grant of stay of proceedings in Mumias Senior Principal Magistrates Court in ELC No. 8 of 2018. That upon the issue of decree by the Mumias Senior Principal Magistrate in ELC No. 8 of 2019 the decree automatically superseded all interim orders that were in the said file. That the applicant has introduced new parties that is the 1st and 2nd respondents who were not parties to the proceedings at Mumias SPMC ELC No. 8 of 2019 decree in the Mumias Court marked by the applicant as annexture “FLN-5a” which is a decree of Mumias Magistrate’s Court. That the applicant has already moved out of the suit land as evidenced by applicant’s annexure marked “FLN-5b” an order by Dimonde Auctioneers seeking for police security to evict him from the subject land hence the orders sought have been overtaken by events and further the applicant cannot stay execution of his costs in the lower court. That the applicant’s appeal No. 7 of 2019 before this honourable court was struck out as it was brought out of time. That the application herein is vexatious, frivolous, its otherwise an abuse of the court process and it ought to be dismissed with costs.

This court has considered the application and the submissions therein. The applicant seeks for orders that, there be a stay of execution of the decree orders made on 4th January, 2019 in Senior Principal Magistrate Court at Mumias Law Courts and eviction orders issued on 26th June, 2019. And that an order of injunction be issued restraining the defendants/respondents herein, their agents, servants and or relatives from constructing houses or structures on, cultivating, planting, harvesting crops from and or dealing in any manner whatsoever with the suit land herein L.R. East Wanga/Mung’ang’a/1431. It is clear this application is seeking for stay or execution and to enforce a right. Under Section 19 of the Civil Procedure Act, every suit shall be instituted in such manner as may be prescribed by rules. Order 3 Rule 1 prescribes the way in which suits should be instituted. It specifically provides that “every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed.” Suits in some instances can also be commenced through originating summons.

In the case of Joseph Kibowen Chemjor vs William C. Kasera (2013) eKLRMunyao J. held that;

“It means therefore that where a person is commencing a civil suit (in this instance to enforce a civil action), he needs to follow prescribed rules. There are times when all that a person wants is an order of court where the rights of the parties are not going to be determined. There is no “action” being enforced or being tried. In many such instances, it is the discretion of the court being sought or a procedural issue sought to be endorsed. The court in such a case is not being asked to determine any rights of the parties. Now, the Civil Procedure Rules do not specifically provide for the procedure to be followed where there is no “action”. In such instances, I think it is permissible for such person to file a miscellaneous application because the court is not asked to determine any issues between the parties. This is common and permissible where all that the party wants is a mere order from the court which does not settle any rights or obligations of the parties. This for instance can cover applications for leave to institute suit out of time or for leave to commence judicial review proceedings”.

I concur with the authority above and the 3rd respondent’s submissions that a party cannot seek to enforce a right through a miscellaneous application like this one. The facts are not before this court and there is no suit before me. Secondly seeking the stay of proceedings in Mumias Senior Principal Magistrates Court in ELC No. 8 of 2018 should be preferred in that suit and not in an application such as this one. I find this application has no merit and I dismiss the same with costs to the respondents.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 18TH FEBRUARY 2020.

N.A. MATHEKA

JUDGE