Belis Evayo Olaka v Hoskin Indimuli Olaka & Lawrence Ojiambo Mugeni [2015] KEHC 4360 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL SUIT NO. 116 OF 2014.

BELIS EVAYO OLAKA ……………PLAINTIFF/RESPONDENT.

VERSUS

HOSKIN INDIMULI OLAKA ……DEFENDANT/RESPONDENT.

AND

LAWRENCE OJIAMBO  MUGENI……………INTERESTED PARTY/APPLICANT

R U L I N G

1.         LAWRENCE OJIAMBO MOGENI, hereinafter referred to as the Interested Party, filed the Notice of motion dated 3rd April, 2014 seeking for among other orders  a temporary injunction  to restrain Belis Evayo Olaka, hereinafter  referred to as the Plaintiff, from dealing with land parcel Busia/Township/125. He also prays for the consent order dated 22nd October, 2013 and all consequential orders including that dated 6th November, 2013 to be set aside. The Applicant set out two main grounds on the application.  The application is supported by the affidavit of the Applicant and that of Hoskin Indimuli Olaka, the Defendant herein, both sworn on 3rd April, 2013. The main contention by the Interested Party and Defendant in their respective      affidavits was that  the signature  attributed to the Defendant  on the consent dated  22nd October, 2013 was not made by the Defendant. They further contend that the  ownership of parcel Busia/Township/125  had been settled in favour  of the Interested Party in Kisumu H.C.C.C. No. 151 of 2009 on 16th October, 2009.

2.  The Plaintiff opposed the application and filed a replying affidavit sworn on 14th April, 2014. He depones that the Interested Party was not a party in this suit and therefore  his application cannot be sustained.  The Plaintiff further deponed that the orders of 16th October, 2009 in Kisumu H.C.C.C. NO. 151 of 2009 conferring proprietorship of  the suit property to Interested Party was stayed on 26th October, 2009.  He further added that the Interested Party was not a party to the consent of  22nd October, 2013        and cannot  therefore move the court to set it aside.

3.   The Defendant  filed an affidavit  sworn on 30th September, 2014  in opposition to the application.  He confirmed  that this suit  was settled through  the consent between him and the Plaintiff.He  annexed copies of two letter dated 4th November, 2010 and 7thJanuary, 2010 from the Chief Land Registrar and Commissioner  of Lands respectively confirming that the suit land, Busia Municipality  parcel 125,  had been   allocated  to John Kayeli Olaka and not  Lawrence  Ojiambo  Mugeni (Interested Party). The Defendant  filed an affidavit  headed replying affidavit sworn  on 19th    January, 2015  more or less reiterating the contents  of the earlier affidavit  sworn on 30th September, 2014.  He depones that the consent of 22nd  October, 2013  was entered  by him freely.  He also disowned the supporting  affidavit  said to have been sworn by him on the 7th April, 2014 and filed by the Interested Party in support of this application.

4.   The counsel for the parties consented to proceed with the application through written submissions. The Interested Party’s counsel filed the written submission dated 16th March, 2015. The counsel for the Defendant filed theirs dated also 16th March, 2015 on the 18th March, 2015.  The counsel for the Plaintiff  adopted the written  submissions  filed for the Defendant.

5.   The court has considered the submissions filed by counsel, the contents of the     affidavits  filed herein, grounds on the application and the pleadings  generally and      come to the following determinations.

6.  DETERMINATIONS;

That the court should determine  first whether the Interested Party is a party in this suit. Secondly, whether  the ownership  of the suit land had been settled  by consent dated 16th October, 2009 in Kisumu H.C.C.C. No. 151 of 2009 and if so, whether  the Defendant had  capacity to enter into the consent  of 22nd  October, 2013  with the Plaintiff in this case.  Finally, whether  the Interested Party  was supposed to be involved  in the consent  of 22nd October, 2013.

That by an order of this court dated 23rd June, 2010, Kisumu  H.CCC. No. 151 of 2009 was among the suits consolidated  with this case. That order has not been vacated and or set aside.  The court has  perused the original court record of the Kisumu. HCCC. No. 151 of 2009  which is annexed  to this file  and the parties are  Lawrence Ojimabo Mugeni as the Plaintiff and Hoskin Indimuli Olaka  as the Defendant.  Lawrence  Ojiambo  Mugeni is the Interested Party/Applicant and Hoskin is the Defendant/2nd Respondent in the current application.  The subject matter of Kisumu H.CCC. No. 151 of 2009  is Busia Municipality 7983/125  which is the one of the subject matters  in the  current suit Busia ELC. No. 116  of 2014 (Formerly  Busia HCCC. No. 15 of 2009). (See the plaint  dated 18th May, 2009 with Belisi Ovayo Olaka  and Hoskin Indimuli Olaka as Plaintiff and  Defendant  respectively).  The Interested Party  had filed the Notice of Motion  dated 3rd December, 2009 seeking to vacate  the orders of 26th November, 2009 among other prayers.  The order of 26th November, 2009 was injunctive  orders against the Defendant over the suit  land and had been issued pursuant to the application dated 23rd November, 2009. The court’s ruling dated 22nd June, 2010 clearly shows that the Interested Party participated  in the hearing  of the Plaintiff’s  application  dated 22nd February, 2010. The foregoing shows clearly that the Interested Party is a party to this case by dint  of at least the court order  of 23rd June, 2010 consolidating  the Kisumu case in which he is the Plaintiff with this case.  The Interested party  has capacity to bring the application subject  matter of this ruling.

That  having found  as in (b)  above and considering that the Interested Party  had a claim over the  same suit land subject  matter of the consent  between the Plaintiff and Defendant  dated 22nd October, 2013, the two  parties to the consent  had an obligation  to obtain his concurrence before filing the consent  in court. The said consent order was filed in court without full disclosure and is incapable  of being taken as a full settlement of the ownership of the suit property  in Kisumu HCCC. No. 151 of 2009 and this case.

That the Defendant and the Interested party had entered a consent dated 16th October, 2009 in Kisumu HCCC. No. 151 of 2009 awarding or the suit land to the  Interested Party.   It is  therefore  surprising  that the same Defendant entered into a consent  dated 22nd October, 2013  in this case giving  the same land to the Plaintiff without first vacating the consent  of 16th October, 2009 and obtaining  the concurrence of the Interested Party. The order of 26th October, 2009 in Kisumu H.CCC. No. 151 of  2009 had only stayed the consent order of 16th October, 2009. The consent  order of 16th October, 2009 has not been set aside  or vacated and remains on record.

That the affidavit  said to have been sworn on 7th April, 2014, but  actually sworn on 3rd April, 2014,  by the Defendant  and filed by the Interested Party in support of his application having been disputed by the Defendant, is hereby  expunged from the court record  for the following reasons;

The jurat is on a separate page.

The Interested Party  did not rebut the Defendant  contention that he did not make the said  affidavit  and further that  the signature  on it was not his.

That the parties in the consolidated cases have been filing a multiplicity of applications instead of taking steps to set down the suits for hearing.   This only contributes to delaying the finalization  of the cases  and the court takes this early opportunity to express its displeasure to the parties and their counsel.  The court advises that parties  and counsel take immediate steps to set down the suits for hearing of the main cases and in the meantime  the inhibition order issued on the suit land title on 9th April, 2014 will remain in force  till further orders.

That though the Interested Party prays for the order of 6th November, 2013 to be set aside, the copy of the order was not annexed to the application.  The court has also perused the court record and does not contain any order dated 6th November, 2013.  The court cannot issue an order to set aside a non-existent order.

7.         That  having found as above, the court find that the Interested Party’s  application dated   3rd April, 2014  has merit and is party  allowed as follows;

That the consent  order between the Plaintiff and Defendant dated 22nd October, 2013  and adopted by the court on 24th October, 2013  be and is hereby set  aside.

That the parties shall take steps to set down the main suits for hearing within the next 60 days.

That the inhibition order against the suit property issued on 9th April, 2015 to remain in force pending hearing and determination of this suit.

That costs of the application dated 3rd April, 2014 be in the cause.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON ……18th ……………DAY OF JUNE, 2015.

IN THE PRESENCE OF;

PLAINTIFF/RESPONDENT……….........…ABSENT

DEFENDANT/RESPONDENT……..........…ABSENT

INTERESTED PARTY/APPLICANT.............ABSENT

COUNSEL. MR. WERE AND MR. JUMBA FOR PLAINTIFF AND DEFENDANT RESPECTIVELY

JUDGE