Charles Karanja Mashua v Jonah Mzee Orumoi, Rose Tito Metuo, Joseph Parsane Orumoi, Julius Sarumue Orumoi & Attorney General [2018] KEELC 3809 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 89 OF 2009

CHARLES KARANJA MASHUA................JUDGMENT DEBTOR/APPLICANT

VERSUS

JONAH MZEE ORUMOI...........................1ST DECREE HOLDER/RESPONDENT

ROSE TITO METUO.................................2ND DECREE HOLDER/RESPONDENT

JOSEPH PARSANE ORUMOI..................3RD DECREE HOLDER/RESPONDENT

JULIUS SARUMUE ORUMOI.................4TH DECREE HOLDER/RESPONDENT

THE ATTORNEY GENERAL...................5TH DECREE HOLDER/RESPONDENT

RULING

1. In the Application dated 16th May, 2017, the Judgment debtor/Applicant is seeking for the following orders:

a. That the order issued on the 15th May, 2017 by the Deputy Registrar issuing warrant of attachment of sale for Loitokitok/Olkaria/254 be reviewed, varied/or set aside.

b. That there be stay of execution of the order issued by the Deputy Registrar on the 15th May, 2017 pending determination of this Application.

c. That the costs of this Application be provided for.

2. The Application is premised on the grounds that the Notice to show cause issued on 6th November, 2014 was heard and determined in the absence of the Judgment debtor; that the Judgment debtor is indisposed and is currently undergoing specialized treatment in the United Kingdom and that the Judgment debtor intends to settle the debt.

3. In response, the Decree holders’ advocate deponed that the Ruling on Taxation of Costs payable by the 1st to the 4th Defendants by the Plaintiff was made on 24th September, 2014; that the Plaintiff has had more than three (3) years to settle the costs and that the fact that the Plaintiff had travelled to the United Kingdom cannot be a reason for setting aside the order that was given on 15th May, 2017.

4. The Applicant has not denied that he owes the Defendants the taxed costs. The record shows that when the matter came up for the Notice to show cause why execution should not issue on 16th March, 2017, the Applicant’s counsel informed the court that the Applicant could not attend court because he was attending to a boundary dispute.  The court found the reason given by the Applicant’s advocate to be unsatisfactory and ordered for the warrant of attachment to issue.

5. It is therefore not true that the orders of 15th May, 2017 were given by the Deputy Registrar without hearing the Applicant. Indeed, the Applicant has had since the year 2014 to pay up the taxed amount which he has failed to do.  By the time the Plaintiff travelled out of the country, he was aware that the Notice to show cause was to be heard on 15th May, 2017.

6. In the circumstances, I find that no good reason has been given as to why I should set aside the orders of the Deputy Registrar of 15th May, 2017.

7. For those reasons, I dismiss the Application dated 16th May, 2017 with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 13TH DAY OF APRIL, 2018.

O.A. ANGOTE

JUDGE