[2022] KEELC 1755 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT ELDORET

JUDICIAL REVIEW NO.E004 OF 2021

IN THE MATTER OF ARTICLE 162(b), 159(2)(d) OF THE CONSTITUTION OF KENYA 2010 AND

IN THE MATTER OF LAW REFORM ACT SECTION 8(1) AND 9 BETWEEN

REPUBLIC...................................................................................................APPLICANT

VERSUS

UASIN GISHU COUNTY GOVERNMENT..................................1ST RESPONDENT

LAND REGISTRAR UASIN GISHU COUNTY...........................2ND RESPONDENT

CHIEF LAND REGISTRAR ...........................................................3RD RESPONDENT

DIRECTOR OF SURVEYS MINISTRY OF LANDS...................4TH RESPONDENT

HOUSING AND URBAN DEVELOPMENT

PRINCIPAL SECRETARY MINISTRY OF LANDS...................5TH RESPONDENT

HOUSING AND URBAN DEVELOPMENT

LAND ADJUCIACTION AND SETTLEMENT OFFICER.......6TH RESPONDENT

UASIN GISHU COUNTY

DIRECTOR OF LAND ADJUDICATION &..............................7TH RESPONDENT

SETTLEMENT MINISTRY OF LANDS HOUSING AND

URBAN DEVELOPMENTHON. ATTORNEY GENERAL.....8TH RESPONDENT

EX-PARTE:...............................................1) KESESS KELCHIN FARM LIMITED

2) SHADRACK TUWEI RONO

3) WILLIAM KIPSOI SIGEI

4) SAMSON K. KIRWA

RULING

INTRODUCTION

1. This is a Ruling in respect of two Applications. The first Application is dated 5th July, 2021. It seeks the striking out of the names of the 4th and 7th Ex-parte Applicants from these proceedings. The second Application is dated 15th September, 2021. It seeks joinder of 416 individuals as interested parties to these proceedings.

BACKGROUND

2. The proceedings herein relate to L.R NO.9621 measuring about 2005acres. This property was originally owned by a colonial settler known as Eileen Nabel Williams. This property was transferred to Kesess Kelchin Farm Limited (Ex-parte Applicant) on 30th December 1968.

3. Though the shareholders of the Ex-Parte Applicant have settled on the property, the property is yet to be fully subdivided and ownership documents given to the shareholders. This is due to infighting amongst the directors and shareholders as to membership of the shareholders in the company register.

THE FIRST APPLICATION

4. The 4th and 7th Ex-parte Applicants contend that they did not give instructions to the firm of Ms. Bungei & Murgor Advocates to file this Judicial Review proceedings. They state that they became aware of these proceedings from social media and that they had no knowledge of the same and that their consent was not sought.

5. The 4th and 7th Ex-parte Applicants’ Application was opposed through a Replying Affidavit sworn by the 2nd Ex-parte Applicant who is one of the Directors of the 1stExt-parte Applicant. The deponent of this Replying Affidavit states that the 4th and 7th Ex-parte Applicants are directors of the 1st Ex-parte Applicant and that they have not tendered their resignations from the Company and cannot therefore purport to isolate themselves from this case when the decision to file it was taken by the company which instructed Ms. Bungei & Murgor to file the same.

6. The 2nd Ex-parte Applicant/Respondent further states that the 4th and 7th Ex-parte Applicants have not given any reason as to why they want to pull out of this case and that the intention of the two is to frustrate efforts by the 1st Ex-parte Applicant to subdivide the land held by the company.

7. In a further Affidavit sworn on 28th October, 2021, the 4th and 7th Ex-parte Applicants argue that there is no evidence that there was a meeting of the company held where the issue of subdivision of the land was agreed on and the firm of Ms.Bungei and Murgor Advocates instructed to act for the company.

8. The parties were directed to file written submissions. The 4th and 7th Ex-parte Applicants filed their submissions dated 28th October, 2021. The 1st,2nd, 3rd, 5th and 6th Respondents did not file any submissions I have considered the Application by the 4th and 7th Ex-parte Applicants as well as the opposition to the same by the Respondents. I have also considered the submissions by the 4th and 7th Ex-parte Applicants. The only issue for determination is whether the Applicants have demonstrated grounds for removal of their names from these proceedings.

9. The 4th and 7th Ex-parte Applicants have not denied the fact that they are directors of the 1st Ex-parte Applicant. Though I cannot see a resolution authorizing the firm of Ms. Bungei & Murgor Advocates to file this suit, the fact remains that the Applicants are directors of the 1st Ex-parte Applicant. All the other directors of the 1st Ex-parte Applicant have been named in this suit. The 4th and 7th Applicants have not given any plausible reason for seeking to pull out of this case. If there are any differences between them and their co-directors, that is not a reason for pulling out of this suit. I find no merit in this Application which is dismissed with costs to the Respondents.

It is so ordered.

THE SECOND APPLICATION

10. The Applicants herein contend that they own individual parcels within L.R.No.9621 and that they approached the 1st Respondent to assist in the subdivision of L.R NO.9621. The 1st Respondent started the process of subdivision but the process was stopped due to these proceedings. The Applicants contend that as they own land within L.RNo.9621, any decision which will be made herein will affect them adversely and therefore it is necessary that they be joined in these proceedings to defend their interest.

11. The Applicants argue that failure to subdivide the land has been caused by the Ex-parte Applicants/Respondents and that there have been numerous suits filed touching on the land which have derailed the process of subdivision. The Applicants contend that there are two parallel registers and that the Ex-arte Applicants/Respondents want to use a false register to subdivide the land.

12. The parties were directed to file written submissions. The proposed, interested parties/Applicants filed their submissions dated 18th October, 2021. The Ex-parte Applicant/Respondent neither filed a replying affidavit nor submissions.

13. I have considered the Applicants’ Application and their submissions. Some of the Applicants are not shareholders of the 1st Ex-parte Applicant. They are purchasers who are in occupation of the land. The Ex-parte Applicants/Respondents want the court to order that the subdivision be undertaken in accordance with the shareholding as shown in payments made between 1968 and 1978. If the Ex-parte Applicants/Respondent were to succeed in their suit, the Applicants might be affected. It is therefore clear that the Applicants have demonstrated that they have an interest in the land and should be allowed to ventilate their claim in these proceedings. I therefore, allow the Applicants’ Application as prayed. The Applicant are at liberty to file pleadings in this matter.

It is so ordered.

DATED SIGNED AND DELIVERED AT ELDORET ON THIS 27TH DAY OF JANUARY, 2022

E. OBAGA

JUDGE

IN THE VIRTUAL PRESENCE OF;

MS.TUM FOR 4TH AND 7TH EX-PARTE APPLICANTS

MS. KIBET FOR MR.KIBII FOR INTERESTED PARTIES

MS. NJIRU FOR 1ST RESPONDENT

COURT ASSISTANT: MERCY

E. OBAGA

JUDGE

27. 01. 2022