[2021] KEELC 2805 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 57 OF 2012

PAUL KIPROTICH RUTTOH.......................................1ST PLAINTIFF

MILKA SOTE..................................................................2ND PLAINTIFF

RACHEL CHESIRE.......................................................3RD PLAINTIFF

SOPHIE SOTE CHEPKWONY....................................4TH PLAINTIFF

IRENE CHESIRE...........................................................5TH PLAINTIFF

STELLAH TURERE SOTE..........................................6TH PLAINTIFF

WINNIE KEMEI............................................................7TH PLAINTIFF

VERSUS

ABRAHIM NAIBEI CHESUMBAI............................1ST DEFENDANT

SOLOMON BICHANGA MOFFAT NDEGE...........2ND DEFENDANT

JOSPHAT WANGILA WANYONYI..........................3RD DEFENDANT

JOHN K. CHERUIYOT..............................................4TH DEFENDANT

WILSON KORIR.........................................................5TH DEFENDANT

SILAS KEREMET BUKAN.......................................6TH DEFENDANT

WILLIAM KIPKEMOI CHEPKWONY..................7TH DEFENDANT

ROBINSON SAKATEKO NYASIMI........................8TH DEFENDANT

JOHN KEMBOI CHEMAGET..................................9TH DEFENDANT

& 206 OTHERS

RULING

1. During her examination-in-chief, PW2, asserted that she was testifying on behalf of the 2nd, 3rd, 5th, 6thand7th plaintiffs.

2. Mr. Teti objected to that assertion on the basis that there was no filed letter of authority empowering PW2 who is the 4th plaintiff to testify on behalf of anyone else.

3. In this court’s view unless the contrary intention is explicitly evinced at date of filing or while the suit is pending and with notice to other parties, plaintiffs enjoined to the suit are to be considered as separate plaintiffs for the purpose of that suit.

4. In the instant case, the defendants had notice that the PW2 would be testifying on behalf of the rest of her sisters; a written statement of witness PW2 filed on 23/1/2020 is on the record. That statement was served upon the defendants and they have never objected to that intention of the PW2 to testify on behalf of her sisters. Indeed when the suit proceeded to hearing on 15/11/2018, one of her sisters was present and she testified in this case.

5. However a novel twist in the case is that the PW2 has conceded that one of the plaintiffs who also doubles up as an administrator, Stella Turere Sote, is senile and cannot come to court. This court is not therefore dealing with the case of plaintiffs who are all on the same footing as far as mental capacity is concerned; one of them is under a disability.

6. So whereas Order 1 Rule 8of theCivil Procedure Rules provides that where numerous persons have an interest in a suit one or more of them may commence the proceedings and, unless the court otherwise orders, continue them as representing all, the special case of the 6th plaintiff herein demands that this court do inquire into whether her interests as a person and as an administrator of the estate of the late Samuel Cheruiyot Chesire are being properly catered for in the suit.

7. This court is duty bound to take such consideration as any further hearing whose proceedings may be probably set aside on the basis of lack of capacity of one party would be a waste of valuable judicial time and effort.

8. Though no medical report has been availed, I note that PW2 testified under oath and I must believe she is speaking the truth when she says that Stella Turere Sote is senile and incapable of coming to court.

9. I have said enough. The case of the 6th plaintiff is just but an example of why this court needs the rest of the plaintiffs to testify personally unless they file any document showing they have authorized PW2 in writing to represent them and testify in the suit. It is not too late in these proceedings and that can be done. The objection raised by Mr. Teti is hereby upheld.

10. As regards the 6th plaintiff, her special case demands that her counsel will determine the appropriate step to take to ensure that owing to her status, a representative properly appointed after due court procedures is available to testify on her behalf.

11. Consequently this hearing cannot proceed any further today and must be adjourned for the reasons stated. PW2 is hereby stood down. The ball is now in Mr. Tororei’s court to regularize the situation to enable further proceeding in the suit.

12. This suit will be mentioned on 14/7/2021 for further directions on which date Mr. Tororei will appraise court of progress made in getting the matter back on track.

It is so ordered.

DATED, SIGNED AND DELIVERED AT KITALE ON THIS 23RD DAY OF JUNE, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.