Emmanuel Oporia & Nicholas Ikol Adungo v Philip Okiru, John Odongo, Kanoti Okube, Paul Okware, Elikasio Etyang, Charles Okepa. & Odauya Ilikunya [2015] KEHC 3822 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 158 0F 2014.

1.  EMMANUEL OPORIA

2.  NICHOLAS IKOL ADUNGO…………….………………………………….PLAINTIFFS

VERSUS

1.  PHILIP OKIRU

2.  JOHN ODONGO

3.  KANOTI OKUBE

4.  PAUL OKWARE.. ………………………………………………………..DEFENDANTS

5.  ELIKASIO ETYANG

6.  CHARLES OKEPA.

7.  ODAUYA ILIKUNYA.

R U L I N G.

1.  PHILIP OKIRU, JOHN ODONGO, KANOTE OKUBE, PAUL OKWARE, ELIKASIO   ETYANG, CHARLES  OKEPA and ODAUYA ILIKUNYA,hereinafter  referred to as the Defendants,  through their advocates M/S. A.G. Aburili & company advocates, filed the Notice  dated 16th June, 2015  to raise preliminary objection on one ground  that  ‘’the suit as filed  is bad in law.’’  This notice was filed and served on the same date that the matter was coming up for the hearing of the main suit.  Mr. Ipapu held  brief for M/S.Aburili & company advocates  for the Defendants, and Mr. Juma advocate appeared  for Emmanuel  Oporia and Nicholas  Ikol Adungo, hereinafter  referred  to as the Plaintiffs. The notice to raise the preliminary objection had also     been given under paragraph 4 of the Defendants’ joint statement of defence dated    16th September, 2014. Both counsel  presented their rival  submissions on the preliminary objection.

2. That the main contention of the Defendants is that one of the suit land, South Teso/Chakol/345, is not registered in the names of the 3rd and 4th Defendant as alleged by the Plaintiffs. Their counsel submitted that the land is registered in the names of a deceased person and to deal with such a property would amount to intermeddling with the deceased person’s estate as the Defendants have not been appointed administrators of the estate.The counsel therefore submitted the suit is bad in law and the plaint should be struck out with costs.

3.  The Plaintiffs’ counsel countered the Defendants’ counsel’s submission by pointing out that the suit is based on the tort of trespass. The counsel submitted that the  father to the defendants, who is deceased, is not a party to this suit. The counsel further submitted that the deceased is incapable of being in trespass of the suit land and that the estate is not trespassing on the land.  It is the Plaintiffs submission that the Defendants have been sued for failing to confine their actions on their parents land and instead  encroaching onto the Plaintiffs land.

4.  The  main issue for determination is whether Defendants  have been sued in their capacities as registered owners of  South Teso/Chakol/345  or for their acts of trespassing onto Plaintiffs  land parcels South Teso/Chakol/1281 and 1282. Secondly  whether the Defendants have been wrongly enjoined  in this suit.

5.  The court has  carefully considered the submission by both counsel on the   preliminary objection, the  plaint dated 7th August, 2014, the joint statement of  defence dated 16th September, 2014 and the reply to the defence dated 28th November, 2014 and come  to the following conclusions;

That paragraph 6  and 7  of the plaint dated 7th August, 2014  shows that the 1st to 4th  Defendants  are described as ‘’ Owners and or occupiers of’’ the specified  parcels  of land.  The 7th   Defendant  is described  as the owner of South Teso/Chakol/347 while  the 5th  and 6th  Defendants are described as  occupiers thereof at  paragraph  8 of  the said plaint.  The fact  that  the 3rd and 4th  Defendants deny owning the land  parcel South Teso/Chakol/345  does not make  the plaint defective  or bad in law. Further, the fact that any of the parcels of the land  mentioned in the plaint is registered  in the names of a deceased person does  not preclude those in possession of the land or using the same from facing legal action in case they trespass into neighbouring parcels.

That it will be  upon the Plaintiffs  to discharge  the duty placed on them under section 107 of the Evidence Act,   Chapter  80 of Laws  of Kenya, to prove  their allegation that  the Defendants  have trespassed onto the suit lands. The court  cannot at this stage  pronounce itself  on whether there has been misjoinder or non-joinder of parties in this suit.  In any  case  Order 1 Rule 9 of the Civil Procedure  Rules, provides  that no suit shall be defeated by reason of misjoinder  or non-joinder of parties as the court would deal  with the matter in dispute  as far as regards the rights and  interests  of the parties  actually before it.

That the court has a constitutional duty to sustain, rather than throw out, cases that come before it so as to have the cases decided on merit. [see article 50 of the constitution  2010].In the case of D.T.   Dobie & company  (Kenya) ltd.,  -vs- Muchina  (1982) KLR 1, Madan J.A (as  he then was) held;

‘’  The power  to strike out should only be exercised  only after  the  court has considered  all facts, but it  must not embark on the  merit of the case itself  as this is solely reserved for the trial  judge.  On  an application  to strike out pleadings, no  opinion should be expressed as this would prejudice fair trial and would restrict  the freedom  of the trial judge in disposing the case.’’

That having  found as above,  the court  finds no merit in the Defendants’ preliminary  objection and the same is rejected with costs to the Plaintiffs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 8th DAY OF July, 2015.

IN THE PRESENCE OF;

1ST PLAINTIFF……………..Present…………………………………

2ND PLAINTIFF…………….Absent………………………………….

1ST DEFENDANT………… Present …………………………………

2ND DEFENDANT………… Present …………………………………

3RD DEFENDANT………… Present …………………………………

4TH DEFENDANT………… Present …………………………………

5TH DEFENDANT………… Present …………………………………

6TH DEFENDANT………… Present …………………………………

7TH DEFENDANT………… Present …………………………………

COUNSEL…Mr. Juma Advocate for Plaintiffs.……………………

JUDGE.