[2020] KEELC 942 (KLR)
The court found that the applicant had previously filed an application seeking to prevent eviction from parcel 1186, which was dismissed for non-service and the file closed. The current application, being substantially similar to the earlier one, amounts to an abuse of the court process. Furthermore, the issue of...
Source-derived case information.
- Citation
- [2020] KEELC 942 (KLR)
- Parties
- Appellant: Stephen Kungutia; Appellant: James Mutiria; Appellant: Nahashon Tharuiya M’Raibuta; Respondent: Severina Nchulubi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 104 of 1999
- Procedural Posture
- Notice of Motion / Ruling on Application for Stay of Execution and Eviction
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Eviction Orders, Abuse of Process, Adjudication Sections, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kungutia
Appellant
James Mutiria
Appellant
Nahashon Tharuiya M’Raibuta
Appellant
Severina Nchulubi
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Stay of Execution and Eviction
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the judgment and decree regarding parcel No. 1186 Kiguchwa Adjudication Section.
- 2 Whether the application constitutes an abuse of the court process due to previous similar applications.
- 3 Whether the litigation concerning parcel No. 1186 has already been conclusively determined by previous courts.
Ratio Decidendi
The court found that the applicant had previously filed an application seeking to prevent eviction from parcel 1186, which was dismissed for non-service and the file closed. The current application, being substantially similar to the earlier one, amounts to an abuse of the court process. Furthermore, the issue of ownership and litigation over parcel 1186 has already been conclusively determined by various courts, including the Court of Appeal, and cannot be reopened through this application. The applicant failed to demonstrate any new grounds or sufficient cause to warrant a stay of execution or to stop the eviction. Consequently, the application was found to be incompetent and unmerited,...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 19.02.2020 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURTAT MERU
ELC APPEALNO. 104 OF 1999
STEPHEN KUNGUTIA................................................................1ST APPELLANT
JAMES MUTIRIA.......................................................................2ND APPELLANT
NAHASHON THARUIYA M’RAIBUTA...................................3RD APPELLANT
VERSUS
SEVERINA NCHULUBI..........................................................1ST RESPONDENT
RULING
1. Vide a notice of motion dated 19. 02. 2020, the applicant (3rd appellant) is seeking orders of a stay of execution of the judgment dated 7. 6.2012 and decree dated 2. 7.2010 and an order to stop his eviction from parcel No. 1186 Kiguchwa Adjudication Section. The grounds in support of this application are that;
1)“The applicant is the sole registered owner and/or proprietor of Tigania East/Kiguchwa/1186 which is a clan landandis one of the subject matter of this case.
2)LP NO.1186 Kiguchwa Section now registered as Tigania East/Kiguchwa/1186 is independent of LP NO. 960/Kiguchwa Adjudication and was never excised therefrom.
3)LP No 1186/Kiguchwa Adjudication Section was wrongly, illegally and maliciously dragged into this case without permission, consent and/or knowledge of the applicant and none of the parties in this suit has vested interest over it.
4)That by demanding or ordering the applicant to vacate therefrom is wrong, illegal and irregular.”
2. The applicant has also filed a supporting affidavit where he contends that parcel 1186 is family land which is independent of parcel 960 which was wrongly and inadvertently dragged by the respondent into this litigation mistaking it for parcel 2952. He contends that he has been served with an eviction notice dated 3. 8.2019 requiring him to vacate parcel no. 1186.
3. In his replying affidavit dated 13. 7.2020, the respondent has given a detailed account of the litigation history between the parties. The respondent had sued the appellants in Maua CMCC No.85 of 1997 where she was claiming ownership of parcel 960 which had been subdivided to create parcels 762 and 1186. The appellants appealed in the High Court Meru Civil Appeal No. 104 of 1999 where they (appellants) lost the case. They proceeded to Court of Appeal in Nyeri C.A No 221 of 2010 where again they (appellants) lost the case.
4. I have considered all the issues raised herein. I find that on 16. 01. 2020, the applicant had filed another application to prevent his eviction from parcel 1186. That application was presented before me on 20. 01. 2020 whereby I gave directions for the application to be served for inter-partes hearing on 10. 2. 2020 and failure to serve would attract a dismissal of the same. Come 10. 02. 2020 and the applicant informed the court that the application had not been served. The court then proceeded to dismiss the application and the file was closed.
5. It is therefore an abuse of the process of this court for the applicant to simply file another similar application.
6. Secondly, I find that the issue of litigation of parcel No.1186 is well captured in the decisions of various courts, including the Court of Appeal. The applicant cannot revisit that litigation through this application.
7. In the circumstances, I find that the application dated 19. 02. 2020 is incompetent and unmerited. The same is hereby dismissed with costs to the Respondent.
DATED, SIGNED AND DELIVERED AT MERU THIS 21ST DAY OF OCTOBER, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this Ruling was given to the advocates for the parties through a virtual session via Microsoft teams on 15. 7.2020. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this Ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE