[2024] KEELC 7056 (KLR)

Wanyonyi & 5 others v Chief Land Registrar & 60 others (Environment & Land Case 3 of 2023) [2024] KEELC 7056 (KLR) (24 October 2024) (Ruling)

Neutral citation: [2024] KEELC 7056 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment & Land Case 3 of 2023

DO Ohungo, J

October 24, 2024

Between

Ashon Sikolia Wanyonyi

1st Plaintiff

Patrick Kisaka

2nd Plaintiff

Eddy Wandela Tela

3rd Plaintiff

Kisaka Mwongolo

4th Plaintiff

David Kiberenge

5th Plaintiff

Patrick Barasa Mukweyi

6th Plaintiff

and

Chief Land Registrar & 60 others & 60 others

Defendant

Ruling

1. By Amended Notice of Motion dated 26th February 2024, the 57th Defendant (Benjamin Barasa Wafula) seeks the following orders:1(A).That it pleases this Hon. Court to give and issue ex parte priority orders for hearing then determine this Application within 14 days of 4th March 2024; concurrent with the Preliminary Objection dated 19th January, 2021; due to the utmost urgency hereof.2(A).That, it pleases this Hon. Court to issue ex parte orders staying the 1st up to 6th Plaintiffs/Applicants and 1st up to 7th Defendants/Respondents herein, their relations, officers, workers, agents and clients as well as any other institution or affiliates claiming through them; from intermeddling and building the Webuye Modern Market Industrial Park and Affordable Houses, on the late Cheloti Kisaka’s uncompensated Intestate LR. No. Ndivisi/Muchi/1253 up to 1400; pending determination of this Substantive Case.3(A).That, it pleases this Hon. Court to issue ex parte orders for arresting the 1st up to 7th Defendants/Respondents herein, their relations, officers, workers, agents and clients as well as any other institution or affiliates claiming through them; due to contempt of the Order of the Court given on the 30th day of June, 2014 and the Rulings delivered on the 5th day of November, 2019; 15th day of October, 2020. 4(A).That, it pleases this Hon. Court to issue ex parte orders allowing families, relatives, guardians or nominees of the deceased proprietors like Cheloti Kisaka, Ali Loponi Mukweyi Titako Kituyi Wanyama, William Mwongolo Tela, Bopoyi Wesenda, Ali Mung’oma Malale, Zebedayo Biketi Mutinyu Wanambisi and Juma Namatsi Wambuchi, Thomas Wefwafwa Kati, Redrick Mabele Kati and Eman Bakari Wekesa Mwasame; to substitute the 3rd up to 6th Plaintiffs/Respondents herein.4(B).That, it pleases this Hon. Court to issue ex parte orders allowing the blind Selinah Namalwa Masoni to substitute the deceased 2nd Plaintiff /Respondent herein; pursuant to the Limited Grant Ad-Litem Intestate issued on the 28th day of September 2023. 5(A).That, it pleases this Hon. Court to issue orders for Costs payable to the 57th up to 61st Defendants/Applicants herein.

2. The application is based on the following grounds as listed on the face thereof:A.That, the urgency considered, shall stop the 1st up to 6th Plaintiffs/Respondents herein, their relations, agents and clients; from intermeddling with the late Cheloti Kisaka’s uncompensated Intestate LR. No. Ndivisi/Muchi 1335 up to 1400; pending determination of this Case.B.That the urgency considered, shall stop the 1st up to 7th Defendants/Respondents herein, their relations, agents and clients; from intermeddling and building the Webuye Modern Market and Fairly Chargeable Houses, on the late Cheloti Kisaka’s uncompensated Intestate LR. No. Ndivisi/Muchi 1253 up to 1400; pending determination of this Substantive Case.C.That the late Cheloti Kisaka owned LR. No. Ndivisi/Muchi 1251 adversely pursuant to the Colony Protectorate of Kenya, in the Native Tribunal Courts through Cases: -i.In the Native Appeal Tribunal Kimilili Civil Case No. 1238 of 1947ii.The Provincial Commissioner’s Civil Appeal No. 10 of 1948iii.The Kimilili Divisional Native Tribunal Civil Case No. 59 of 1949iv.The Appeal Tribunal Kakamega 211 of 1949v.The District Officer’s Civil Appeal Kakamega 90 of 1950vi.The Provincial Commissioner’s Civil Case No. 41 of 1950. D.That, the late Cheloti Kisaka, made several claims to the 1st up to 6th Defendants/Respondents herein, who took a couple of years to solve the land disputes.E.That, the 1st up to 6th Defendants/Respondents herein, under compensated the now deceased Cheloti Kisaka, through Kenya Gazette No. 1710 of 12th June, 1970. F.That, the now deceased Cheloti Kisaka refused the Low Compensation and logged (sic) complaints to the 1st up to 6th Defendants/Respondents herein.G.That, I the Applicant herein, after being registered the Archivist Researcher No. 31814; has discovered how the 1st up to 6th Defendants/Respondents did con my now deceased ChelotI kisaka, on the 21st day of March, 1968. H.That, the 1st up to 6th Defendants/Respondents herein, were compromised on 21st March, 1968 through Muchi Registration Adjudication Team; then cheated that some tycoons and prominent people, bought part-portions of my Ancestors.I.That, I the Applicant herein, after being registered the Archivist Researcher No. 31814; has discovered how the 1st up to 6th Defendants/Respondents herein, returned my matrimonial grandfathers land without informing him, between 1968 and 1989. J.That, one of my matrimonial uncles claimed only 8 acres, out of the minimal 110 acres claimed by my matrimonial grandfather as cited through ground “C” hereof.K.That, its for the interests of justice, to stay the 1st up to 7th Defendants/Respondents and 1st up to 6th Plaintiffs herein, from doing any dealings on the disputed LR. No. Ndivisi/Muchi 1122 up to 1400; pending surveying investigations as resolved by the 1st up to 7th Defendants/Respondents through National Liaison Meetings on: -i.21st March, 1968ii.22nd November, 1973iii.27th February, 1975iv.16th May, 1975v.23rd September, 1975vi.3rd January, 1976vii.12th August, 1976.

3. The application is further supported by an affidavit sworn by the applicant.

4. At the hearing, the Applicant relied entirely on the application and the supporting affidavit and urged the court to grant the orders sought.

5. The 8th to 56th Defendants told the court that they would not participate in the hearing of the application. They left it to the court.

6. Counsel for the Plaintiffs submitted that the Applicant is not a plaintiff in the matter and that all deceased parties were substituted. He further stated that the Busia court stopped the applicant from filing any interlocutory application and urged the court to schedule the main suit for hearing.

7. I have considered the application, the affidavit and the submissions. This is a very old matter that has had a chequered history. It was initially filed in the High Court at Bungoma on 7th November 2012. It was later transferred to the Environment and Land Court at Bungoma, then to the Environment and Land Court at Busia, then back to the Environment and Land Court at Bungoma and finally to this court through an order made on 7th June 2023 by Justice O. A. Angote, PJ ELC.

8. Considering the age of the matter and its history, this court has endeavoured to have the main suit heard and determined. In that regard, the court gave directions on 14th February 2024 as regards filing of paginated trial bundles. The matter was then scheduled for mention on 20th May 2024 with a view to fixing a hearing date. The present application was filed on 13th March 2024.

9. The record further shows that the Second to Sixth Plaintiffs’ cases were marked abated on 14th February 2024. The said cases have not since been revived. There can be no substitution in an abated suit without revival. Equally, no orders can be made against the Second to Sixth Plaintiffs since they ceased being parties to this case with effect from 14th February 2024.

10. The parties in this case must stop filing unnecessary interlocutory applications. They need to get to the bottom of the dispute, by having the main suit heard and determined on its merits.

11. I find no merit in Amended Notice of Motion dated 26th February 2024 and I therefore dismiss it. Costs in the cause.

DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 24THDAY OF OCTOBER 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:Mr Sichangi for the PlaintiffsNo appearance for the 1st to 7th DefendantsMr Mulama for the 8th to 56th DefendantsThe 57th Defendant present in personNo appearance for the 58th to 61st DefendantsCourt Assistant: M Nguyayi