[2022] KEHC 11744 (KLR)

Wanjau & another v Kairu; Muiruri (Interested Party) (Civil Appeal 436 of 1998) [2022] KEHC 11744 (KLR) (Civ) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11744 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 436 of 1998

JK Sergon, J

May 18, 2022

Between

James Mwangi Wanjau

1st Appellant

S.M. Kivuitu

2nd Appellant

and

Joseph Macharia Kairu

Respondent

and

Kenneth Kimani Muiruri

Interested Party

Ruling

1. The interested party in this instance took out the Notice of Motion dated June 29, 2021 and sought for the orders hereunder:i.That the respondent Joseph Macharia Kairube evicted from land parcels Loc3/Gacharage/712 and Loc3/Gacharage/715. ii.That the respondent be ordered to pay the costs of the motion as well as the expenses of the eviction.iii.That the eviction be supervised by the OCS Githumu police station.

2. The motion is supported by the grounds set out on its body and the facts stated in the affidavit of Samuel Muiruri Gito, the father of the interested party and to whom the latter had donated his power of attorney to swear the affidavit on his behalf.

3. To oppose the motion, the respondent swore a replying affidavit on October 8, 2021, followed by a supplementary affidavit which he swore on March 4, 2022.

4. The appellants did not participate at the hearing of the motion.

5. When the motion came up for hearing, the parties’ respective advocates relied on the affidavits sworn in support of and in opposition to the motion.

6. I have considered the grounds set out on the face of the motion and the facts deponed in the affidavits in support of and in resistance thereto.

7. It is clear that the instant motion seeks an order of eviction of the respondent from the parcels of land known as Loc3/Gacharage/712 and Loc3/Gacharage/715 (“the subject properties”).

8. On the one part, the interested party through Samuel Muiruri Gito states that he bought the subject properties which were previously owned by the respondent, by way of public auction.

9. The deponent further states that upon the purchase of the subject properties by the interested party, the High Court acknowledged the said purchase as absolute and ordered the deputy registrar-Civil Division, to execute the transfer documents.

10. It is the averment by the deponent that the first subject property was transferred to the interested party while the second is in the process of being transferred, but that despite the existing court order mentioned above, the respondent is still in possession of the subject properties and has refused and/or neglected to give possession to the interested party and hence the instant Motion.

11. In retort, the respondent on the other hand states that the title deed belonging to the first subject property is currently being held by Barclays Bank and that the same is yet to be released to him despite him clearing the loan upon which the title document was being held as security.

12. The respondent also states that he and his family have been in possession of the subject properties for a number of years and that the eviction order; if granted; would amount to an injustice visited upon them.

13. It is also stated by the respondent that the interested party has filed a separate suit seeking similar orders as those now being sought, namely ELC no 4 of 2021 and which suit is pending determination, and hence this court lacks jurisdiction to grant the orders being sought at present, the subject matter being a land matter.

14. Upon my perusal of the record, it is apparent that following the application by the interested party, the High Court vide the present appeal issued an order on April 7, 2011 to the effect that the right and interest in the subject properties be and is hereby vested in the interested party, following his purchase of the same by way of a public auction held on April 11, 2003.

15. Upon my further perusal of the record, it is apparent that the interested party subsequently applied to have the transfer documents in respect to the subject properties executed by the deputy registrar, in his favor.

16. The record shows that the High Court vide the order issued on March 11, 2012 granted the order for execution sought hereinabove.

17. Going by the record, there is nothing to indicate that any of the abovementioned orders have been challenged by way of an appeal or set aside.

18. That notwithstanding and as earlier noted, the order presently sought is specifically for eviction of the respondent from the subject properties.

19. The respondent annexed to his replying affidavit a copy of the plaint dated December 11, 2020 and filed on January 27, 2021 in ELC Case no 4 of 2021 by the interested party.

20. Upon my reading of the same, I observed that the reliefs sought are essentially declaratory in nature; for vacant possession of the subject properties; general damages for trespass and for an injunction restraining the respondent from continuing to be in possession of the subject properties.

21. The interested party has not disputed the existence of the land suit and it is clear therefrom that he is essentially seeking orders similar to those being sought in the instant motion.

22. It is apparent that the land case preceded the instant Motion and it is also apparent that the same is still pending before the Environment and Land Court (ELC).

23. In view of the foregoing circumstances, I am of the observation that the interested party cannot purport to seek similar reliefs in two (2) separate cases. Upon considering the fact that he opted to pursue the matter before the ELC, I am unable to grant the orders now being sought.

24. The upshot therefore is that the Notice of Motion dated June 29, 2021 is hereby dismissed for lack of merit, with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 18TH DAY OF MAY, 2022. J K SERGONJUDGEIn the presence of:…………………………….. for the 1st and 2nd appellants/applicants…………………………….. for the respondent……………………………. for the interested party