[2021] KEELC 3836 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC MISC. CASE NO. E1 OF 2021

RICHARD KARUGU....................................................................APPLICANT

VERSUS

DAIVI KIPROTICH ARAP TOO............................................RESPONDENT

RULING

The application is dated 12th January 2021 and is brought under provision of Order 9 (2) (a) of the Civil Procedure Rules 2010 and Section 3A & 63 (e) Civil Procedure Act 2010 seeking the following orders that:-

1. That leave be granted to the applicant/plaintiff herein to file and conduct a civil suit seeking eviction of the respondent/defendant from land parcel Kakamega/Sergoit/44.

2. That costs of this application be in cause.

It is supported by the affidavit of the applicant and on the following grounds that the said suit property LR. No. Kakamega/Segoit/44 was legally and rightfully registered in the name of Wilson Kingori Wamburi (deceased) way back in 1979. That upon the demise of the said Wilson Kingori the respondent herein filed several frivolous suits against the deceased on various platforms with a fraudulent intention to transfer the said suit property into his name. That the deceased had appointed Beverly Wamburi to be the executor of his estate through a will he left behind. The said executor/administrator donated powers vide a power of attorney to have the applicant herein deal with the suit property in all matters pertaining to it. That respondent herein mysteriously and illegally transferred the suit property in his name using a vacated court order in 2016. That the respondent is occupying the said property issuing threats to the applicant thus necessitating the intended suit herein. That this application is made in good faith and in good time. That it is in the interest of justice that this application be allowed to accord this honourable court determine the real issues between the parties herein.

This court has considered the application and the submissions therein. The applicant has brought this application exparte seeking leave to file a civil suit. the said suit property LR. No. Kakamega/Segoit/44 was legally and rightfully registered in the name of Wilson Kingori Wamburi (deceased) way back in 1979. That upon the demise of the said Wilson Kingori the respondent herein filed several frivolous suits against the deceased on various platforms with a fraudulent intention to transfer the said suit property into his name. That the deceased had appointed Beverly Wamburi to be the executor of his estate through a will he left behind. The said executor/administrator donated powers vide a power of attorney to have the applicant herein deal with the suit property in all matters pertaining to it. That respondent herein mysteriously and illegally transferred the suit property in his name using a vacated court order in 2016. That the respondent is occupying the said property issuing threats to the applicant thus necessitating the intended suit herein. From the submissions in this application it is clear that this matter has been litigated upon elsewhere. The issue as to whether or not this suit is res judicata or sub judice is therefore at the center of this application and in my opinion the applicant is seeking to sneak in an application to be granted leave irregularly. Section 6 and 7 of the Civil Procedure Act Cap 21 provides as follows:

Section 6.

“No court shall proceed with the trial of any suit or proceedings in which the matter in issue is directly and substantially in issue in a previously instituted suit or proceedings between the same parties, or between parties under whom they or any of them claim, litigate under the same title, where such suit or proceedings is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”

Section 7.

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

For these reasons and the above sections of the law, I find this application is frivolous and vexatious and a waste of the court’s time. It is not merited and I dismiss it forthwith with no orders as to costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 24TH MARCH 2021.

N.A. MATHEKA

JUDGE