Charity Nyaruai Nyamu v Abdirahim Haji Ahmed [2015] KEHC 1147 (KLR)

REPUBLIC OF KENYA

IN THE HIGH  COURT OF KENYA AT MERU

MISC CIVIL APPLICATION NO 48 OF 2015

CHARITY NYARUAI NYAMU..............................................APPLICANT

VERSUS

ABDIRAHIM HAJI AHMED ...........................................RESPONDENT

R U L I N G

This application is dated 2nd day of July, 2015.  It states that it is predicated upon Order 51 Rule 1 and 3 of the Civil procedure Rules and Section 6, 17 and 18 of the Civil Procedure Act and all the enabling provisions. It seeks order that:-

This application be certified as urgent.

That service of this application be dispensed with in the 1st instance.

That this application be heard experte in the 1st instance.

That there be stay of proceedings in Isiolo Senior Principal  Magistrate’s case No 33 of 2011 pending the hearing and determination  of this application.

That there be stay of the proceedings in ISIOLO SPMCC NO. 33 of  2011 until the hearing and determination of Meru High Court Constitutional Petition No. 33 of 2011.

That in the alternative, Isiolo SPMCC No. 33 of 2011 be transferred to Meru High Court and be consolidated with High Court Constitutional Petition No. 6 of 2011.

That  cost incidental to this application be provided for by the respondent.

The application is buttressed by the affidavit of Charity Nyaruai Nyamu and  has the following grounds:-

That the suit property herein is plot No. MB 478 within Mwangaza Area of Isiolo.

That  the respondent is alleged to have balloted this plot and he was given by the now defunct County Council of Isiolo.

That the whole process of the alleged balloting is contested by the residents of Mwangaza Area of Isiolo in Constitutional Petition No. 6 of 2011 where the applicant is one of the Petitioners.

That the respondent has sued the applicant  in Isiolo SPMCC No 33 of 2011 on the basis of that illegal balloting which residents are challenging as a community  in Petition No. 6 of 2011.

That the applicant will be greatly prejudiced if there is contradictory decision in Isiolo SPMCC No. 33 of 2011 and in Petition  No. 6 of 2011 at Meru High Court.

This matter came up for directions to confirm filing and exchange of Submissions on 9/11/2015.  The applicant has filed Submissions but the Respondent has not done so. I do confirm that the respondent’s Advocate had been properly served and therefore aware of this date.  As he has not filed his Submissions, I am unable to fix a date for the Ruling.

Mr. Ondieki has asked the Court to allow this application as the respondent is merely delaying the matter. I find Mr. Ondieki’s oral application meritorious. In the Circumstances, the application is allowed in terms of prayer 5 only.  Costs  shall be in the cause.

Delivered in Open Court at Meru this 9th day of November, 2015 in the presence of:-

CC: Lilian /Daniel

Ondieki for the Applicant.

P. M. NJOROGE

JUDGE