FRANCIS PEPELA WANJALA v HEZRON WALUSUNA WANJALA, LAND REGISTRAR – BUNGOMA & ATTORNEY GENERAL [2011] KEHC 3556 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL SUIT NO.30 OF 2009

FRANCIS PEPELA WANJALA............................................................................................APPLICANT

~VRS~

HEZRON WALUSUNA WANJALA.........................................................................1ST RESPONDENT

THE LAND REGISTRAR – BUNGOMA.................................................................. 2ND RESPONDENT

THE HON. ATTORNEY GENERAL.........................................................................3RD RESPONDENT

RULING

The Plaintiff/Applicant Francis Pepela Wanjala sues the three Respondents for a declaration that land parcel BOKOLI/MISIKHU/1182 belongs to the Plaintiff and for cancellation of 1st Defendant’s title to the land. The 1st Defendant denies the claim in his written statement of defence filed by Nyachiro & Co. Advocates on 26/06/2009. The 2nd and 3rd Respondents failed to enter appearance and filed defence.

In the application dated 16/09/2009, the Plaintiff seeks for leave under Order IX A Rules 5, 7 and 11 of the Civil Procedure Rules for entry of interlocutory judgment against the 2nd and 3rd Respondents. The Plaintiff served the Permanent Secretary, Ministry of Lands with notice of intention to sue dated 28/01/2009. The 3rd Defendant was also duly served. This suit was filed on 22/04/2009. Service of the plaint and summons to enter appearance were served on the 2nd and 3rd Respondents as shown by the affidavits of service sworn by Cleveland Mwebi dated 16/09/2009. This application was also served on the 3rd Respondent on the 05/07/2010 as shown by the affidavit sworn by Cleveland Mwebi on 12/10/2010 and copy of duly stamped hearing notice. The Respondents did not reply to the application. It is a requirement under Order IX A Rules 5, 7 and 11 that before interlocutory judgment is entered against the Government whose principal legal representative is the Attorney General, leave be obtained from court. This application is unopposed. All the requirements have been satisfied by the Applicant. I allow the application dated 16/09/2009 as prayed. In essence interlocutory judgment is hereby entered against the 2nd and 3rd Respondents. The matter to be fixed for formal proof. Costs of this application to the Applicant in the cause.

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F. N. MUCHEMI

JUDGE

Ruling dated and delivered on the 10th  day of March,  2011 in the presence of Mrs. Change for Mwebi for the Applicant.

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F. N. MUCHEMI

JUDGE