ANTHONY KIPKOSKE KIMETTO v DICKSON A. RONO, DAVID A. RONO, VERONICA SIGIRO, PAUL CHEBUSIT, PAUL A. SURA, PHILIP A. SIGILAI, DANIEL A. SIGILAI, DAVID A. SIGILAI, BENJAMIN A. SIGILAI, OBOT NORA SERON, KIPTANGUS A. BUSIENEI, SAMUEL A. TOWET, WILS [2008] KEHC 1066 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

Civil Case 78 of 2007

HONOURABLE ANTHONY KIPKOSKE KIMETTO….......…PLAINTIFF

VERSUS

DICKSON A. RONO……….…………………….……..1ST DEFENDANT

DAVID A. RONO…………..…………………...……….2ND DEFENDANT

VERONICA SIGIRO……………..……………………..3RD DEFENDANT

PAUL CHEBUSIT………………...……………………4TH DEFENDANT

PAUL A. SURA…………………………………………5TH DEFENDANT

PHILIP A. SIGILAI………………...……..……………..6TH DEFENDANT

DANIEL A. SIGILAI…………...………………………..7TH DEFENDANT

DAVID A. SIGILAI………………...…………………….8TH DEFENDANT

BENJAMIN A. SIGILAI……..………………………….9TH DEFENDANT

MRS OBOT NORA SERON……………...………….10TH DEFENDANT

KIPTANGUS A. BUSIENEI………………………….11TH DEFENDANT

SAMUEL A. TOWET……….….………..…………….12TH DEFENDANT

WILSON A. TOWET……………………..…………..13TH DEFENDANT

ROBERT KIPROTICH………………………..……..14TH DEFENDANT

THOMAS MAIWA…………..………………..……….15TH DEFENDANT

RULING

By his notice of motion dated 13th July 2007, the plaintiff seeks under Order 35 Rules 1(1)(b), 2 and 3 of the Civil Procedure Rules as well as Section 3A of the Civil Procedure Act and all enabling provisions of the law summary judgment as prayed in the plaint.  Order 35 Rule 1(1)(b) of the Civil Procedure Rules, in as far as it is relevant to this matter, provides that “In all suits where a plaintiff seeks judgment for… the recovery of land, with or without a claim for mesne profits… where the defendant has entered appearance the plaintiff may apply for judgment… for recovery of the land.”

From both the application itself and the supporting affidavit, it is clear that the application is premised on the ground that the defendants though served have not entered appearance or filed a defence.  In view of the above provision, the application is clearly incompetent and is for striking out.

On its merits the application also stood no chance of success as contrary to Mr. Mongeri’s contention the 3rd, 6th, 7th, 8th, 9th and 10th defendants entered appearance on 12th June 2007 and filed a defence on 27th June 2007.  Those defendants claim in their defence that they bought portions of the suit piece of land from one Indeyo Ole Yiaile, the current registered owner.  The plaintiff never referred to that defence at all.  So it stands unchallenged.  He also never exhibited a certificate of official search to show whether or not he is the current registered owner of the suit piece of land.  The copy of the title he exhibited was issued on 16th December 1988.  I am therefore unable to know whether or not the defendants’ contention that the current registered owner is Ndeyo Ole Yiaile is true.

For these reasons, thought the application is not opposed, as I have said it is incompetent and I hereby strike it out with no order as to costs.

DATED and delivered at Nakuru this 3rd day of October, 2008.

D. K. MARAGA

JUDGE