Daniel Nyaga Kamande, Charles Kamau Wanguhu & Jane Wangari Kibe v Ngucanirio Farmers Company, Joseph Wachira Wanene & Joseph Maina Kingori [2018] KEELC 4401 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO.82 OF 2013

DANIEL NYAGA KAMANDE...........................1ST PLAINTIFF

CHARLES KAMAU WANGUHU....................2ND PLAINTIFF

JANE WANGARI KIBE……………….…......3RD PLAINTIFF

VERSUS

NGUCANIRIO FARMERS COMPANY ..….…...DEFENDANT

AND

JOSEPH WACHIRA WANENE ….….INTERESTED PARTY

JOSEPH MAINA  KINGORI ……..…INTERESTED  PARTY

DIRECTIONS

1. This case was heard and judgment delivered on 22 October 2004 by Ojwang’ J ( as he then was). Judgment   was entered for the plaintiff against the named defendant, Ngucanirio Farmers Company Limited. When  the  plaintiff  moved to  execute the  judgment, in the form  of eviction of the persons  on the suit land,  thought to comprise of members of the defendant, various  persons filed applications to be enjoined  in this case, claiming that they ought not to be affected by the  judgment, since  Ngucanirio Farmers Company  Limited  does  not  exist and that  the judgment  is fraudulent.

2. I felt  the  need to satisfy myself  as to whether  or not,  there is a company registered  as Ngucanirio Farmers  Company limited, and summoned the Registrar of  companies  who sent  a representative. The information provided by the  Registrar of  Companies, is that  there  is no limited liability company, or indeed any  incorporated  company, bearing the name Ngucanirio Farmers Company  Limited. What  exists  is a business  name  registered  as  Ngucanirio company, with  6  persons as  proprietors. I was satisfied that  Ngucanirio Farmers Company Limited does not   exist.

3. I have seen a ruling in this matter, delivered by Odunga J, on 3 July 2012, pursuant to an application filed by  one of the interested parties, seeking to stop enforcement of the  judgment against them. In his ruling, Odunga J, “set aside the judgment and consequential orders emanating therefrom in so far as the same   affect the interested parties...”

4. The import of the above ruling, is that it will be extremely  difficult, if  not  impossible, for the plaintiff to execute the judgment  against the  individuals occupying   the suit  land, as the judgment  was not  obtained against  them, but  against  a non-existent entity.  Indeed, I do hold that this judgment cannot be enforced upon them as they are not members of Ngucanirio Farmers Company Limited.

5. I think  the  plaintiff may  need  to consider filing  a fresh suit, against  the  persons  occupying  the  ground,  if he feels that  he has  any claim  against them. As I have directed, this judgment cannot be executed against them.

6. I make no orders as to any costs incurred over these directions.

7. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 28th   day of February 2018.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU

In the presence of:

Mr. Muthee  holding brief on the part of M/s Nyachiro &  Co.  for the  plaintiff.

Mr.  Mboya for  defendant and  6th  Interested Party.

Peter  Kinuthia  - 8th  interested  Party

Joseph  Kingari-  10th   Interested Party

Other   parties and Counsel - Absent

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU