David Kimaiyo, Rael Kimaiyo, Alfred Kimaiyo, Kipkemoi Kimaiyo, Boniface Kimaiyo, Michael Kimaiyo v David Cheruiyot Kimilot [2021] KEELC 3853 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT ELDORET

E & L CASE NO. 321 OF 2016

DAVID KIMAIYO...................................................................1ST PLAINTIFF/APPLICANT

RAEL KIMAIYO...................................................................2ND PLAINTIFF/APPLICANT

ALFRED KIMAIYO...............................................................3RD PLAINTIFF/APPLICANT

KIPKEMOI KIMAIYO..........................................................4TH PLAINTIFF/APPLICANT

BONIFACE KIMAIYO.........................................................5TH PLAINTIFF/APPLICANT

MICHAEL KIMAIYO..........................................................6TH PLAINTIFF/APPLICANT

VERSUS

DAVID CHERUIYOT KIMILOT........................................DEFENDANT/RESPONDENT

RULING

[NOTICE OF MOTION DATED 19TH OCTOBER, 2018]

1.  Michael Kimaiyo, the 6th Applicant, moved the Court through the Notice of Motion dated the 19th October, 2018 seeking for “this originating summons to be consolidated with David Cheruiyot Kimilot Versus Michael Kimaiyo, Eldoret E & L Case No. 834 of 2012” for hearing and determination.  He also prays for costs.  The application is based on the four (4) grounds on its face that the suits relate to the same land and the parties are related; the suits should be heard together to guard against conflicting decisions; the need to avoid duplication of judicial effort and time; and the need to conclude the suits with finality as they have been pending in Court for too long.  The application is supported by the affidavits of Michael Kimaiyo sworn on 19th October, 2014 and 1st March, 2020.

2.  The application is opposed by David Cheruiyot Kimilot, the Respondent through the replying affidavit sworn on the 17th February, 2020.

3. The learned Counsel for the 1st Applicant and the Respondent filed their written submissions dated the 2nd March, 2020 and 10th March, 2020 respectively.

4.  The following are the issues for the Court’s determinations;

(a) Whether the 6th Applicant has made a reasonable case for consolidation of this suit with Eldoret ELC No. 834 of 2012.

(b) Who pays the costs of the application?

5. The Court has after considering the four grounds on the application, the affidavit evidence, the learned counsel’s written submissions, the superior courts’ decisions cited and the record come to the following findings;

(a)   That this proceeding was commenced through the originating summons dated and filed on the 4th November, 2016 by the six (6) Applicants against the Respondent claiming for six (6) acres of land parcel Uasin Gishu/Kaptagat/150 under adverse possession.

(b)  That the Respondent herein had earlier filed Eldoret ELC No. 834 of 2012 [formerly Eldoret Hccc No. 52 of 2012] against the six (6) Applicants vide the Plaint dated the 19th March, 2012 and amended on the 1st October, 2015 seeking for an order of their eviction from land parcel Uasin Gishu/Kaptagat/150 and costs.

(c)  That though no copies of pleadings were availed to the Court, the deposition in the replying and supplementary affidavits confirms that there exists another case between the parties being Judicial Review Case No. 175 of 2002.  That the Respondent’s position is that the Judicial Review matter is pending in Court, while the Applicants are of the view that it has abated following the death of the Tamining Kimaiyo on the 8th November, 2003.

(d) That the prayers in Eldoret ELC No. 834 of 2012 and this suit concern land parcel Uasin Gishu/Kaptagat/150.  The Plaintiff in Eldoret ELC No. 834 of 2012 is seeking possession of the said land by seeking to have the Defendants evicted, while the Applicants in this originating summons are seeking to be declared the owners of the six (6) acres of the suit land.  That while the suit land and parties in both suits are the same, but appearing under different titles, this suit was obviously filed about four (4) years after Eldoret ELC No. 834 of 2012 thereby contravening Section 6 of the Civil Procedure Act, Chapter 21 of Laws of Kenya.

(e)  That further to (d) above, the record shows that the Respondent herein has a notice of Motion dated 19th December, 2016 seeking for stay of this originating summons pending the hearing and determination of Judicial Review No. 175 of 2002, ELC No. 834 of 2012 and Hccc No. 202 of 2011.  That the Court has perused the record and it appears the Applicants have not filed any replying papers to the said application.  The application has however, not been fixed for hearing to-date.

(f)   That as what the Applicants seek in this suit can as well be dealt with through the earlier suit, that is Eldoret ELC No. 834 of 2012 without the two suits being consolidated, the Court finds no merit in the Notice of Motion dated the 19th October, 2018.  That the Applicant commenced this proceedings while well aware of the existence of the Eldoret ELC No. 834 of 2012 and should therefore meet the costs of the application.

6.  That flowing from the foregoing, the Applicants’ Notice of Motion dated the 19th October, 2018 is without merit and is dismissed with costs.

Orders accordingly.

Delivered virtually and dated at Eldoret this 24th day of March, 2021.

S. M. KIBUNJA

JUDGE

In the presence of:

Applicants:       Absent.

Respondent:    Absent.

Counsel:          Absent.

Court Assistant: Christine and the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.