[2008] KEHC 3137 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Civil Case 71 of 2007

WILSON K. KISEET )

DAVID LEBOO OLE KILUSU )……………….…APPLICANTS

KOKWET OLE KUNINI )

VERSUS

1. COUNTY COUNCIL OF TRANS MARA ).. 1ST DEFENDANT

2. JACKSON NANGIDA – CHAIRMAN ).. 2ND DEFENDANTS

3. JACKSON MPARIO – SECRETARY )

4. OLONANA OLE WUANTAI – TREASURER)

5. SITATO OLE IKONET – MEMBER )

6. BENSON GISOI – MEMBER )

7. JACKSON NTAYIA – MEMBER )

8. OLEIUNGUA OLETONMCEL – MEMBER

ON THEIR BEHALF AND ON BEHALF OF THE MEMBERSOF OLOUSUICUT COMMUNITY

CONSERVATION TRUST

RULING

On 21st June 2007, the applicant filed Originating summons under order XV1 rule 1(a)(e)(g) of the Civil Procedure Rules. The same was worded as follows:

“LET THE RESPONDENTS COUNTY COUNCIL OFTRANS MARA and OLOISUKUT COMMUNITYCONSERVATION TRUST attend before theHonourable Judge in chambers on ………the ………. of …………., 2007 at 9. 00 0’clock inforenoon or soon thereafter in answer to theservice of this summons, which is issued uponthe application of WILSON K. KISEET, DAVIDLEBOO OLE KILUSU and KOKWET OLE KUNINIall residents of Trans Mara in the Republic of

Kenya FOR ORDERS THAT:

1. The 1st Respondent herein whether by itself or its servants or Agents, be restrained by an Order of injunction from doing the following acts or any of them, that is to say from paying out to the 2nd Respondents or any other party any portion of the park fees and/or any other funds it holds in trust for the Group Ranches and the communities around the Maasai Mara Game Reserve.

2. the 2nd Respondents herein whether bythemselves or their servants or agents, berestrained by an Order of injunction fromdoing the following acts or any of them,that is to say from demanding, receivingand/or collecting park fees and/or or anyother funds held in trust by the 1stRespondent in trust for the GroupRanchers and communities around theMaasai Mara Game Reserve.

3. The Respondents herein do deliver up tothe applicants an account of all the moniespaid by the 1st Respondent to the 2ndRespondents of the park fees held by the1st Respondent on behalf of the GroupRanches and residents of Trans Mara/

4. An Order that the 2nd Respondents andeach of them do deliver up and pay tothe 1st Respondents all monies receivedout of the park fees kitty administeredby the 1st Respondent on behalf of theGroup Ranches and the residents of TransMara.

5. An Order of permanent injunctionrestraining the 1st Respondent from payingto the 2nd Respondents or any other partyany portion of park fees and/or restrainingthe 1st Respondent from delegating theadministration of the park fees.

6. The Respondents do pay the costs of thisSuit.”

Together with the Originating Summons the applicants also filed an application by way of chamber summons under Order XXX1X rules 1,2, 3 and 9 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. They sought the following orders:

(a)that the 2nd Defendant, its servants and/or agents be restrained by order of an injunction from demanding, receiving and or collecting park fees and/or any other funds held in trust by the first defendant for the communities around the Maasai Mara Game Reserve pending the hearing and determination of the originating summons.

(b)The 1st defendant, their servants and/or agents be restrained by an order of an injunction from paying out to 2nd defendants or any other party any portion of the park fees and/or any other funds it holds in trust for the communities around the Maasai Mara Game Reserve pending the hearing and detrmination of the Originating Summons.

The application was supported by affidavits sworn by the applicants herein. The affidavits contained more or less the same depositions and I will highlight the contents of the 2nd applicant’s affidavit.

David Leboo Ole Kilusu deposed that he was a resident of Kimintet within the County council of Trans mara (herein after referred to as “the Local Authority”).

He stated that the operations of the 2nd respondent would cover his area of residence and greatly affect his life along with the lives of other applicants. He added that the 2nd respondent was trying to recruit him and the other residents of the local authority into its membership. He was also aware that the 2nd respondent intended to demand and receive from the 1st respondent a portion of fees that the 1st respondent was receiving from the Mara Conservancy through a management agreement for the Maasai Mara Game Reserve and administer on behalf of the residents of the local authority. From the park fees, the 1st respondent was assisting the residents of the local authority in several ways including giving bursaries to needy students and social welfare activities for local residents.

The deponent further stated that although the 1st respondents had experienced hitches in discharging its functions, it was better suited in rendering the above services than the 2nd respondents. He set out the reasons for his objection to the 2nd respondents activities.

He stated, inter alia, that the 2nd respondent was a self-help group, which was governed by the provisions of the Public Procurement and Disposal Act.

He was fearful that the 2nd respondent would operate without any checks and balances and will be a conduit for embezzlement of park fees.

The said application came up for hearing on10th March 2008. The defendant filed neither a replying affidavit nor grounds of opposition. Mr. Ogari who held brief for M/S Njenga Mbugua & Nyanjua advocates for the plaintiffs urged this court to grant the orders as sought.

Mr. Oguttu held brief for M/s Katwa and Kemboy Advocates for the 1st defendant. He submitted that the plaintiffs’ suit had been brought under non-existence rules of the Civil Procedure. He further submitted that the plaintiffs were not capable of commencing their suit by way of originating summons in terms of Order XXXVI of the Civil Procedure Rules. He added that it had not been shown that there was any property that was in danger of being wasted or alienated, as the subject matter of the dispute was money.

In his view, no injunction could issue in the circumstances.

I have carefully considered the plaintiffs’ application.

Whereas the plaintiffs have advanced a serious claim as against the defendants, the suit as commenced is defective in law. Order XXXVI of the Civil Procedure Rules specifies the types of claims that can be brought by way of Originating Summons and the plaintiffs’ suit does not qualify. But even if the claim could have been brought by way of an originating summons, the law is very clear that an originating summons has to take the format as shown in form 13 or 13A of Appendix B. Secondly there is no appropriate affidavit in support of the originating summons, only verifying affidavits were filed as if the originating summons was a plaint.

The plaintiffs’ capacity to bring this suit has not been disclosed. It is obvious that there are numerous persons who have the same interest in the suit as the plaintiffs. The provisions of Order I rule 8 of the Civil Procedure Rules should therefore have been complied with. That was not done.

I am satisfied that the suit is defective and cannot be sustained by any amendment. I strike it out with costs to the 1st defendant. The Plaintiffs are at liberty to file an appropriate suit.

DATED, SIGNED and DELIVERED at KISII this 16th day of April 2008

D. MUSINGA

JUDGE

Delivered in open court of the presence of

Mr. Anyona HB for Njenga Mbugua for the plaintiff.

Mr. Ochwangi HB for Katwa Kemboy for the Defendant

D. MUSINGA

JUDGE