George Rubiik v Official Liquidator of Cent Sacco Society,Commissioner For Co-Operative Society Development & Micro Enterprises Support & Programme Trust [2018] KEELC 4220 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.6 OF 2016 PETITION

IN THE MATTER OF ARTICLES 19, 20,21,22 AND 23 (1) & (3), 40(2), 47(1).

50(1), 73(1), 73(2)(C) AND 159(2) OF THE CONSTITUTITION OF KENYA 2010

AND

IN THE MATTER OF SECTION 96, 97 OF THE LAND ACT NO.6 OF 2012

AND

IN THE MATTER OF SECTION 49, 64, 65, AND 66(1)(A)(F)(I)(N) OF THE

CO-OPERATIVES SOCIETIES ACT CAP 49 LAWS OF KENYA

AND

SECTION 3,4(1)(2)(3)(A)(B) & (G)(4), 6,7,(1) (A)(J)(I)(M)(O) OF THE FAIR

ADMINISTRATIVE ACTIONS ACT, 2015

BETWEEN

GEORGE RUBIIK (Suing on behalf of the Comprehensive Course on

FRANSISCAN MISSION CHARISM PROGRAM……...…….PETITIONER

VERSUS

OFFICIAL LIQUIDATOR OF CENT SACCO SOCIETY

(IN LIQUIDATION ONBEHALF OF THECOMMISSIONER FOR

CO-OPERATIVE SOCIETY DEVELOPMENT...................….RESPONDENT

AND

MICRO ENTERPRISES SUPPORT &

PROGRAMME TRUST (MESPT)………………........INTERESTED PARTY

RULING

1. George Rabiik (Suing on behalf of the Comprehensive Course on Franciscan Mission Charism Program), the Petitioner, seeks for conservatory order restraining Micro Enterprises Support & Programme Trust [MESPT], the  Interested Party,by itself or agents from selling, dealing, interfering, alienating disposing of all that parcel of land known as East/Kisumu/Dago/516 pending the hearing and determination of this petition.  The application is based on the nine (9) grounds marked (i) to (ix) on its face, and is supported by the affidavit sworn by the Petitioner on the 28th September 2016.  The application is also supported by the Official Liquidator of Cent Sacco Society [In liquidation on behalf of the Commissioner for Co-operative Societies Development], the Respondent, through the affidavit sworn by Japheth Atuti, on the 27th October 2016.

2. The application is opposed by the Interested Party through the replying affidavit sworn by Raphael Kuria, the Head of Credit and Business Development, on the 3rd November 2016.

3. The application come up for hearing on the 6th December 2016 when directions on filing and exchanging written submissions were given.  That consequently, the counsel for the Petitioner and Interested Party filed their submissions dated 19th May 2017 and 19th June 2017 respectively.  That during the mention of the 4th December 2017, when this matter was fixed for ruling today, counsel for the Respondent informed the court that they were not filing any submissions.

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

a. Whether the Petitioner has established an arguable case with a probability of success for issuance of conservatory order at this stage.

b. Who pays the costs.

5. The court has carefully considered the nine grounds on the notice of motion, affidavit evidence by the Petitioner, Respondent and Interested Party; plus submissions by counsel for the Petitioner and Interested Party and come to the following findings;

a. That paragraphs 5(a) to (h) of the ruling delivered today in Kisumu ELC Petition No.5 of 2016 are adopted in this ruling as the two matters are related in almost all aspects except the name of the Petitioner  and parcel number.

b. That accordingly the notice of motion dated 28th September 2016 is res judicata as it contravenes Section 7 of the Civil Procedure Act.

6. That for the reasons set out above the court orders  as in Kisumu ELC Petition No.5 of 2016 as follows;

a. That the notice of motion dated 28th September 2016 is res judicata in view of the rulings in Kisumu H C C C No.8 of  2011 and that of 19th April 2016  in Kisumu ELC NO.10 of 2015. That the application is therefore struck out with costs to the interested Party.

b. That in view of the court’s ruling of the 19th April 2016 in ELC Kisumu No.10 of 2015, this petition is an abuse of the courts process and is hereby struck out with costs to the Interested Party.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS7TH .DAY OF MARCH 2018

In presence of;

Petitioner                   Absent

Respondent             Absent

Interested Party       Absent

Counsel                    Mr. Edward for Muma for Petitioner

Mr. Oguso for Respondent and Mr. Arikho for Nthinga for Inter4ested party.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

7/3/2018

7/3/2016

S.M. Kibunja Judge

Joane Court assistant

Parties absent

Mr. Edward for Muma for Petitioner

Mr. Oguso for Respondent

Mr. Arikho for Nthiga for interested party.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

7/3/2018