[2016] KEHC 4445 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

ENVIRONMENT AND LAND CIVIL CASE NO. 156 OF 2010

JAMES OWUOR AMOLO

(Suing as the legal representative of

JACTONE AMOLO OYARE, deceased) .……………..…..…………………. PLAINTIFF

VERSUS

PETER ADONGO OKONGO ……………………………………...……..........… DEFENDANT

RULING

The defendant’s/applicant’s application dated 11th December 2015 brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules seeks orders that:-

1. The honourable court be pleased to declare that the order staying execution of the decree in Migori SPM’s court Misc. Application No. 37 of 2010 has lapsed in terms of the orders of this honourable court given on 5th October 2012 and 16th May 2014.

2. Costs of the application be provided for.

The application is supported on the grounds set out on the body of the application and on the supporting affidavit sworn by Peter Adongo Okongo the defendant herein on 11th December 2015. The plaintiff/ respondent opposes the application on the basis of the replying affidavit sworn by James Owuor Amolo on the 24th February 2016.

The brief facts of this matter are that the present plaintiff’s father one Jacktone Amolo Oyare filed the instant suit on 9th June 2010 seeking the cancellation of title number Kanyamkago/Kajulu/488 which he claimed was registered in the defendant’s name fraudulently. The defendant by a defence dated 2nd July 2011 contended he was validly registered as owner of the suit property following the revocation of the title registered in the name of the plaintiff on account of the same having been irregularly and fraudulently registered in the plaintiff’s name. The defendant counterclaimed for vacant possession of the suit property. Apparently during the pendency of the instant suit the defendant initiated a land dispute claim before the Uriri Land Dispute Tribunal where an award was rendered on 15th July 2010 that the defendant vacates the suit land. The award was adopted in the Senior Principal Magistrate’s Court at Migori Misc. Case No. 37 of 2011 on 19th April 2011 and a decree issued.

An application by the plaintiff to stay the execution of the decree issued in the Migori SPM’s court was conditionally granted vide a ruling delivered by Hon. Lady Justice Korir on 5th October, 2012. Apparently by the time the ruling was delivered the original plaintiff had died prompting his personal legal representative to make the application dated 10th April 2013 seeking a review of the orders made by Hon. Lady Justice Korir on 5th October 2012. Hon. Justice Okong’o vide a ruling delivered on 16th May 2014 varied/reviewed the orders made by Hon. Lady Justice Korir and made the following orders:-

The order of stay of proceedings and execution of the decree issued in Migori SPM’s Court Misc. Application No. 37 of 2010 shall remain in force pending the hearing and determination of this suit.

The time within which the plaintiff was to execute a bond in the sum of kshs. 100,000/= as a security for costs is extended by sixty (60) days from the date hereof.

The time within which the parties were to comply with Order II and list this matter for hearing is extended by 120 days from the date hereof.

The stay granted herein shall lapse automatically if this case is not set down for hearing within 120 days from the date hereof.

The costs of the application shall be in the cause.

The plaintiff in yet another application dated 24th February 2015 sought leave and was granted leave to enjoin one John Angino Oduke and Mary Awach in the present suit as the 2nd and 3rd defendants as the defendant had caused the subject matter of the suit to be transferred to them during the pendency of the instant suit and of an order restraining the defendant from wasting, damaging, alienating, constructing on and/or doing anything on the suit property pending the hearing and determination of the suit. The court also in its ruling delivered on 27th August 2015 permitted the plaintiff to amend the plaint to enjoin the new parties.

The court record shows that the amended plaint enjoining the 2nd and 3rd defendants was filed on 30th September 2015. The record however is silent on whether the 2nd and 3rd defendants were served with the amended plaint and neither have they appeared and/or filed any defence. Noting that the amended plaint seeks the cancellation of the title issued to the 2nd and 3rd defendants names in regard to land parcel Kanyamkago/ Kajulu/488, the subject property in the suit it would be imperative for them to be served and afforded an opportunity to defend the suit.

In the instant application by the defendant, the defendant premises his application on the grounds that the plaintiff did not comply with Hon. Justice Okongo’s orders of 16th May 2014 which varied the orders granted by Hon. Justice Korir on 5th October 2012 and for that reason he sought the order of stay to be declared as having lapsed. The common order in the two rulings was that the plaintiff was to execute a bond in the sum of kshs. 100,000/= as security for costs. It is from the record unclear what form such a bond was to take. Was the plaintiff merely required to give an undertaking or was it a surety bond or personal bond? At the time Hon. Justice Okong’o delivered a ruling on the plaintiff’s application dated 24th February 2015 he noted the plaintiff had not complied with his orders issued on 16th May 2014. The judge observed that he has allowed the application for stay of the decree and the eviction order that had been issued by the Migori court but further noted that Hon. Justice Makhandia had on 30th June, 2010 granted an injunction restraining the defendant from in any way or manner dealing with the suit property and which order had not been varied or set aside.

In my view Hon. Justice Okong’o even though he found that the plaintiff had not complied with his orders of 16th May 2014 he nonetheless went ahead to grant the plaintiff leave to enjoin new parties and to amend his plaint principally on the basis that the defendant had caused the transfer of the suit property when there was in force an order of injunction restraining such an action.

The contest in the present suit is the ownership of land parcel Kanyamkago/Kajulu/488 which both the plaintiff and defendant claim ownership of. The defendant having caused the transfer of the property to the 2nd and 3rd defendant when there was an order barring such action in my view altered the parameters under which the suit was to be contested. Invariably the directions that the court had given vide its ruling of 16th May 2014 as regards compliance with Order 11 Civil Procedure Rules could not be satisfied without bringing on board the 2nd and 3rd defendants who by virtue of having become registered owners became necessary parties in the suit who stood to be affected by any order the court made and prompted the application by the plaintiff dated 24th February 2015. Equally the orders of stay and eviction from the Migori court had as it were become superfluous as the certificate of official search dated 17th December 2014 shows John Angiro Oduka and Mary Awach (2nd and 3rd defendants) had gotten registered as owners of the suit property on 13th June 2012 meaning the defendant had ceased to have any interest in the suit property and essentially even on 16th May, 2014 when the court reviewed and varied Hon. Lady Justice Korir’s order of 5th October 2012 the defendant had ceased to be the owner of the suit property. The defendant in my view did not make full disclosure in the matter and in the present application he has not approached the court with clean hands. The order he seeks in the application cannot be of any effect as he virtually gave effect to the decree of the Migori SPM’s court. He having already transferred the suit land to the 2nd and 3rd defendant, the latter are the persons who now have to show and demonstrate they have a good title to the suit property. It is them who would be entitled to seek an order of eviction against the plaintiff and not the 1st defendant.

The net result is that I do not find any merit in the defendant’s application dated 11th December 2015 and I order the same dismissed with costs to the plaintiff.

Ruling dated, signedand deliveredat Kisii this 23rd day of June, 2016.

J. M MUTUNGI

JUDGE

In the presence of:

………………………………………….. for the plaintiff

………………………………….……… for the defendant

J. M MUTUNGI

JUDGE