[2018] KEELC 2141 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

MISC. APPLICATION ELC CASE NO. 3 OF 2018

JAMES INDIAZI IMBUGWA..............................APPLICANT

VERSUS

BENJAMIN KILAINI IMBUGWA

EDWARD KILAINI IMBUGWA

WYCLIFF AMBANI...................................RESPONDENTS

RULING

This application is dated 22nd March 2018 and is brought under Section 1A (1 &2), 1B (1) (a) and 3A of the Civil Procedure Act seeking the following orders;

1. That this matter be certified as urgent and service thereof be dispensed with in the first instance.

2. That pending the inter partes hearing of this Application this Honourable Court be pleased

(a) to restrain the Defendants, either by themselves or through their agents and/or representatives, from accessing, disposing of, working on or in any way interfering with the right of the Plaintiff to occupy, use or utilize L.R Nos. Nyang'ori/Kapsotik/760 & 761 both of which are registered in his name;

(b) to direct the 2nd Defendant to return to the Plaintiff:

(i) His National Identity Cord No 1874830;

(ii) His Kenya Commercial Bank ATM card; and

(iii) All the moneys illegally withdrawn from his Kenya commercial Bank account.

3. That pending the final determination of this Application this Honourable Court be pleased:

a. to restrain the Defendants either by themselves or through their agents and/or representatives from accessing, disposing of, working on or in any way interfering with the right of the Plaintiff to occupy, use or utilize L.R Nos. Nyang'ori/Kapsotik/760 & 761 both of which are registered In his name;

b. to direct the 2nd Defendant to return to the Plaintiff: (i) His National Identity Card No [particulars withheld];

(ii) His Kenya Commercial Bank ATM card; and

(iii) All the moneys illegally withdrawn from his Kenya Commercial Bank Account.

4. That pending the disposal of the Main suit this Honourable Court be pleased:

a. to restrain the Defendants either by themselves or through their agents and/or representatives from accessing, disposing of, working on or in any wayinterfering with the right of the Plaintiff to occupy, use or utilize L.R Nos. Nyang'ori/Kapsotik/760 & 761 both of which are registered in his name;

b. to direct the 2ndDefendant to return to the Plaintiff:

(i) His National Identity Card No [particulars withheld];

(ii) His Kenya Commercial Bank ATM card; and

(iii) All the moneys illegally withdrawn from his Kenya Commercial Bankaccount.

5. That costs be in the cause.

The applicant submitted that, the 1stDefendant is his biological brother while the 2nd and 3rd Defendants are his biological son.That he is the registered proprietor of L.R Nos.Nyang'ori/Kapsotik/760 (measuring approximately 2 Ha) and 761 (measuring approximately 0. 7 Ha) as shown by the copies of the titles marked as exhibit ‘JII 1 & 2 respectively. That he has excised 1 acre from Plot 760 and gifted it to the 3rd Defendant who has established his home on the said 1 acre.That he has in turn set up his home on the balance of Plot 760 and he cultivates tea on the entire Plot 761. That since the year 2014 he has been physically incapacitated spending his days either lying on bed or confined to a wheel chair.That on the 24th day of February 2018 the Defendants trespassed onto Plot 761 and purported to share it out the same amongst themselves.That earlier on the 2nd Defendant confiscated his National Identity Card No [particulars withheld] and bank ATM card which he has unlawfully used to make withdrawals. He hence prays for the orders.

The respondents opposed the applicant’s application dated 22nd day of March, 2018 on the grounds that, jurisdiction was denied in the defendants’ statement of claim and this court cannot therefore be used to aid the plaintiff on an issue that had been pleaded.Jurisdiction is everything and once pleaded and the court finds it has no jurisdiction the most prudent thing it does is to down its tools.The only remedy available to the applicant is for him to withdraw the case in Vihiga and if he so wishes, file a fresh suit in Hamisi after paying the respondents costs. Hamisi Sub County was initially Nyangori and hence it cannot be that there was confusion.Capacity of the applicant to institute suit in his mental state is a question that had been raised as part of preliminary objection and therefore it is incumbent for the issue to be canvassed in the Vihiga Court and not to abuse the process in this court.

This court has carefully considered the application and the submissions therein. The application is based on the grounds that, the 2nd and 3rd Defendants are the Plaintiff's biological sons while the Defendant is his biological brother. That the Plaintiff is the registered proprietor of L.R Nos Nyang'ori/Kapsotik/760 (measuring approximately 2 Ha.) and 761 (measuring approximately 0. 7 Ha.). That the Plaintiff has excised 1 acre from Plot 760 and gifted it to the 3rd Defendant who has established his home on the said 1 acre.That the Plaintiff has in turn set up his home on the balance of Plot 760 and cultivates tea on the entire Plot 761. That since the year 2014 the Plaintiff has been physically incapacitated spending his days either lying in bed or confined to a wheel chair. That on the 24th day of February 2018 the Defendants trespassed onto Plot 761and purported to share it out the same amongst themselves. That earlier on the 2nd Defendant confiscated the Plaintiff's National Identity Card No. [particulars withheld] and his bank ATM card which he has unlawfully used to make withdrawals.That the Defendants are taking advantage of the Plaintiffs immobility and frail health to unjustifiably deprive him of his hard-earned sweat. That the orders sought herein are necessary to enable the Plaintiff enjoy tranquility given his medical and health challenges. The application was opposed on the grounds that, jurisdiction was denied in the defendants’ statement of claim and this court cannot therefore be used to aid the plaintiff on an issue that had been pleaded. Jurisdiction is everything and once pleaded and the court finds it has no jurisdiction the most prudent thing it does is to down its tools. The only remedy available to the applicant is for him to withdraw the case in Vihiga and if he so wishes, file a fresh suit in Hamisi after paying the respondents costs. Hamisi Sub County was initially Nyangori and hence it cannot be that there was confusion.

I agree with the respondents. This application is an abuse of the court process and should not have been filed in this court. The applicant instituted suit number 53 of 2018 before the Principal Magistrate’s Court in Vihiga and now wants this court to give injunctive orders on the same. This application should be casnvassed in the subordinate court which has jurisdiction to hear and determine the same. This application has no merit and I dismiss it with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF JULY 2018.

N.A. MATHEKA

JUDGE