Edgar Chilande Wanyama (Suing on behalf of the Estate of Henry Wanyama Khaemba (Deceased) v Emily Kivali Mulaya & David Sifuna [2017] KEELC 3445 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 120 OF 2014

EDGAR CHILANDE WANYAMA (suing on behalf of the Estate of

HENRY WANYAMA KHAEMBA (DECEASED).....................PLAINTIFF

VERSUS

EMILY KIVALI MULAYA.............................................1ST DEFENDANT

DAVID SIFUNA...........................................................2ND DEFENDANT

R U L I N G

The Respondents have raised an objection to the effect that some matters raised in the affidavit filed by the Applicant on 5th January, 2017 should be excluded from these interlocutory proceedings.  Whereas Ms. Kayugira for the 1st Respondent was not specific, Mr. Ongoya for the 2nd Respondent specified the offending matters to be as follows:-

1. Annexture “ECW1” and Annexture “ECW2” in the affidavit of the Applicant sworn on 5th January, 2017.

2. Paragraphs 15 and 16 of the affidavit of the Applicant sworn on the 5th January, 2017.

In support of the objection by both defendants it was submitted by counsel that the purpose of a supplementary affidavit is similar to a right of reply applicable to a person who has a right to begin in civil proceedings.  The counsel also equated the same to a right to re-examine which is applicable to a party who had given evidence in chief in civil proceedings.  It was contended that such a party has an inherently limited right as to the matters that he could raise, and so, in parallel, a supplementary affidavit filed after a replying affidavit is lodged, should not be allowed to contain matters beyond those raised in the replying affidavit.

In this particular case, it is submitted that the supplementary affidavit of the Applicant sworn on 5/1/2017 contained matters that were not envisaged in the replying affidavits of the Respondents.  In particular it was submitted that it referred to Civil Suit No. 280/2015 - Hon. David Sifuna versus Emily Kivali Mulaya and Nelson Harun Dumbeiya in which the applicant herein had made an application to be enjoined as an interested party and which sought the transfer of the suit to Kitale for hearing and determination.

In reply to the objection Mr. Ndiritu for the Applicant has stated that leave was granted by the court and that the court did not limit in any manner the contents of the proposed supplementary affidavit.  Therefore, stated Mr. Ndiritu, any matter that could enable the just determination of the case could be properly raised in the said affidavit. Mr. Ndiritu also submitted that no rules of procedure had been quoted in aid of the objection raised by the Respondents.  He further submitted that the said annextures are not in anticipation of any transfer of the suit, but that they are based on sworn statements of fact made by the defendants regarding matters pending before this court in the current suit.  He urged that this is a special court and in accordance with Section 19(1) of the Environment and Land Court Act, the court shall act expeditiously, not be strictly bound by rules of evidence. He also stated that the materials are relevant and that the advocates on the record for the respondents should have been briefed on all other relevant matters.  In addition he said, service was effected more than one month before the objection was raised.

Finally he stated that the two defendants are parties in the quoted suit, to wit, Milimani Nairobi ELC. No. 280/2015 and that the defendants may be granted an opportunity, if necessary of clarifying the matters referred to.

I have considered the rival submission herein.  I have noted that parties did appear before the court on 30/11/2016 and some orders were issued binding both the parties to undertake some action in preparation for the hearing of the application dated 18/11/2016.  One of the orders required the applicant to file a supplementary affidavit within 10 days of service of replying affidavits by the Respondents.  There is no dispute raised about service of the replying affidavits or the supplementary affidavits.  Upon being served with the further affidavit sworn on 5/1/2017 the Respondents never filed any objection to any of the contents thereof.  The 1st Respondent filed written submissions on 7th January, 2017.  It is not clear if the 2nd Respondent has filed any submissions as at the time of this ruling as none appear on the court file.

It is necessary to focus specifically on the matters and documents said to be offensive by the Respondents in order to determine this objection effectively.

The annexture marked “ECW1” in the affidavit of the Applicant sworn on 5/1/2017 is a copy of an affidavit sworn by one Emily Kivali Mulaya in Nairobi ELC No. 280/2015.  The Respondent has not been heard to dispute that the deponent of that affidavit is the same person as the 1st Respondent herein.  It is safely assumed that she is one and the same person.  The matters that she raised in that affidavit revolve around land including LR. No. Trans-Nzoia/Kapomboi/193, which is the subject matter of the current suit and application.

The annexture marked “ECW2” in the affidavit of the applicant sworn on the 5th January, 2017 is a copy of an application made under a certificate of urgency in the same suit, that is NBI ELC No.280 of 2015, seeking among other orders, transfer of the suit to Kitale for hearing and determination as the subject land is situate within Trans-Nzoia County.

Paragraphs 15 and 16 of the affidavit of the Applicant sworn on the 5th January, 2017 refer to these two exhibits discussed above respectively.  Paragraph 15 appears to point out that the 1st defendant has in another court record admitted the existence of a dispute regarding the suit land herein (or some of it) before the demise of the Henry Wanyama Khaemba. Paragraph 16 merely brings to the attention of the court the fact of an application for joinder and transfer to Kitale in respect of NBI ELC No.280/2015.

I have considered the aspect of potential prejudice that may be caused to the Respondents by any reference to these proceedings and I find none.  Besides, it is a fact that the filing of a supplementary affidavit was authorized by this court on 30/11/2016.  That order was not set aside or varied at any time before or after the filing of the impugned affidavit. No notice of this objection was filed or served upon the Applicant and the objection was canvassed orally. The court entertained the objection in order to explore its merits before any further proceedings on the application in fairness to the Respondents.  However, I am not convinced that the objection is merited.  The matters contained in the annextures referred to in paragraphs 15 and 16 of the further affidavit are relevant to this application in so far as they relate to the same land, LR No. Trans-Nzoia/Kapomboi/193, to which the application dated 18/11/2016 relates. Further, this court is not being requested to transfer or make any orders that may adversely affect the application for transfer of suit in NBI ELC No. 280/2015. The issue of transfer is left to the court that will hear that application.  I cannot see how reference to the matters now objected to will embarrass the process.  In any event while the court is making its ruling, on the application dated 18/11/2016, it will focus only on the relevant matters that would enable the grant or denial of the orders prayed for therein.

Consequently I find the objection to be without merit and I hereby dismiss it and order that the hearing of the application dated 18/11/2016 do proceed.

Dated, signed and delivered at Kitale on this 9thday of February, 2017.

M. NJOROGE

JUDGE

In the presence of:

Mr. Ongoya for the 2nd defendant

Mr. Nderitu for the plaintiff

Ms. Kayugira for 1st defendant

Court Assistant - Isabellah.

M. NJOROGE

JUDGE

9/2/2017