[2012] KEHC 3066 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT

AT ELDORET

Civil Case 32 of 2005

LORNAH JEBIWOTT KIPLAGAT ……….…….............................……………. PLAINTIFF

VERSUS

RODAH MASIT ………..………………..........................………………… 1ST DEFENDANT

ESTHER CHERUIYOT ………..…………..............................……………. 2ND DEFENDANT

WINNIE KIBISACH ……………………............................……………..…3RD DEFENDANT

(Sued as the trustees of Mosop Marichor Women Group of Chepkorio)

J. W. ODUOR ………..……………………..........................…....….…… 4TH DEFENDANT

CHIEF LAND REGISTRAR ………..….............................……………… 5TH DEFENDANT

COMMISSIONER FOR LANDS ………................................……….…… 6TH DEFENDANT

THE HON. ATTORNEY GENERAL ….................................……..………. 7TH DEFENDANT

RULING

The Notice of Motion is dated the 27th June 2012 and is brought under Order 2 Rule 15, Order 4 and Order 51 of the Civil Procedure Rules (2010) and under Sections 3 and 3A of the Civil Procedure Act and all other enabling provisions of the law.

The applicants seek to strike out the Plaintiff’s suit as the same is scandalous, frivolous, vexatious and an abuse of the due process of the law.

The application is supported by the grounds on the face of the Application and on the affidavit of ESTHER CHERIYOT made on the 25th June 2012.

Counsel for the 4th, 5th and 6the Defendants associated herself with the Applicant’s submissions.

The Respondent opposed the application and relied on the Grounds of Opposition dated the 26th June 2012.

Upon hearing and considering the submissions and arguments of all the learned Counsel, the Court finds the following issues for determination:

(1)Instructions

(2)The Plaint – its validity

(3)Verifying Affidavit

On the first issue relating to the instructions, Counsel for the Applicant argues that the suit was commenced without the instructions of the Plaintiff.

The Court finds that this issue of instructions has been canvassed at length and has been determined by a ruling given by Honourable Justice Azangalala on the 3rd October 2011 in which he held that there were valid instructions given to the firm of OGUTU & CO. ADVOCATES. The Court finds that the Ruling settled and determined the issue relating to instructions and this Court has no mandate to re-open or revisit this issue.

The next issue relates to the validity of the Plaint. Counsel for the Applicant argued that the suit was commenced without instructions and that there must be ratification. That the Plaintiff’s conduct throughout is not tantamount to ratification. Counsel cited various authorities in support on this line of submission.

The Court has had occasion to peruse the Court record and finds that on the 25th May 2005 the Plaintiff filed an Amended Plaint which was supported by a Verifying Affidavit dated the 19th May 2005.

The Court finds that by so doing the Plaintiff has ratified and validated both the Plaint and the instructions.

There is also a “BY CONSENT’ Order dated 19th April 2010 where all the parties herein that is the Plaintiff, the 1st Defendant, the 2nd Defendant, the 3rd Defendant, the 4th Defendant, the 6th Defendant and the 7th Defendant have all consented to the filing of a further Amended Plant herein by the Plaintiff.

By conceding to the above and due to the existence of the above mentioned “Consent Order” all the Defendants herein are “ESTOPPED” from challenging the validity and ratification of the Plaint and instructions pertaining thereto.

On the last issue relating to the Verifying Affidavit, had the Plaint been filed with no Verifying Affidavit, then the said Plaint would have been improperly on record and the Plaint would have definitely been struck out for being incompetent.

But that is not the case herein. Was the Verifying Affidavit herein defective? The Court states that the authorities on this issue are legion. The Court of Appeal has been averse to striking out of a Plaint on the grounds that a Verifying Affidavit is defective and have allowed Plaintiffs to put in a proper Verifying Affidavit within a specified time.

The Court finds that the Plaintiff by putting in an Amended Plaint accompanied by a Verifying Affidavit ratified and rectified all the existing anomalies.

In conclusion the parties herein, with particular emphasis on the Plaintiff, are strongly advised to desist from the side shows and concentrate on the core business of having this matter listed for hearing and final determination.

For all the reasons stated above, this Court finds that the Application is lacking in merit and the same is hereby dismissed.

Costs shall be in the Cause.

It is so ordered.

Dated and delivered at Eldoret this 13th day of July 2012.

A. MSHILA

JUDGE

Coram:

Before: Hon. Mshila J

CC: Andrew

Counsel for Plaintiff/Respondent - Gicheru

Counsel for Defendant/Applicant – Kipseii for 2nd and 3rd Defendants.

Kipsei holding brief for Mbiyu for State for 5th, 6th and 7th Defendants.

Kipseii: Applies for certified copies of ruling for purposes of appeal.

Gicheru: No objection. Applies for a hearing date for 2 days.

Court: Certified copies of the ruling to be provided to Counsel for the Applicants. Matter listed for hearing on 27th and 28th November, 2012.

A. MSHILA

JUDGE

13. 7.2012