In re Estate of Nickson Makokha Masaba(Deceased) [2019] KEHC 10369 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

IN BUSIA

ENVIRONMENT AND LAND COURT

HCCNO. 23 OF 2004

FRANCIS OSIKE MASABA...........................APPLICANT NOT A PARTY

NICKSON MAKOKHA MASABA...............................................DECEASED

SEMEYO NYONGESA MASABA........................................2ND PLAINTIFF

VERSUS

HENRY KHAKHUBU WEDODO.............................................DEFENDANT

R U L I N G

1. By an application dated 21/8/2017 filed here on the same date, FRANCIS OSIKE MASABA, opposes the inclusion of his name in a Notice to Show Cause said to relate to intended or imminent sale of land parcel No. L.R. BUKHAYO/KISOKO/349 to realise some costs and interests amounting to Kshs.155,760.  The application is against HENRY KHAKHUBI WEDODO.  Henry was the Defendant in this suit filed against him by two parties – DICKSON MAKOKHA MASABA and SEMEYO NYONGESA MASABA.

2.  It is clear that Henry had this suit terminated in his favour vide a ruling dated 15/5/2013.  The ruling itself was on an application filed by Henry dated 23/3/2010.  In the ruling, costs were awarded to Henry.

3.  It is necessary to clarify that the suit was between DICKSON MAKOKHA MASABA and SEMEYO NYONGESA MASABA as Plaintiffs while HENRY KHAKUBI WEDODO was the Defendant.  But a decree drawn after the suit was terminated includes FRANCIS OSIKE MASABA as a party.  In this application itself, FRANCIS describes himself as “NOT A PARTY”, meaning he is not a party in the suit.  In his application, FRANCIS has three prayers namely:

Prayer (a):  Spent

Prayer (b):That it pleases the honourable court to dismiss the N.T.S.C why L.R. BUKHAYO/KISOKO/349 should not be attached to answer the decree.

Prayer (c):  That costs be provided for.

4. The Respondents opposed the application vide grounds of opposition dated 12/2/2018 filed here on the same date.  To the Respondents, the application is ineptly drawn and hence incompetent.  The order sought was said to be incapable of being granted through an application and this court itself was said to be functus officio.  Further, Francis was said to lack Locus Standi to bring the application.

5. The application was canvassed by way of written submissions.  The submissions of FRANCIS were filed on 29/10/2018. Francis submitted, interalia, that he was not a party to the suit; that no application was made to enjoin him as a party; that he was not summoned for taxation of costs; and that he was not involved in the ruling that terminated the suit.

6.  The submissions of the Respondent were filed on 2/11/2018.  Francis was faulted for not following procedure in raising his objection.  The court was asked to dismiss his application.

7. I have considered the application, the response made, rival submissions, and the history and antecedents attending the entire suit.  Francis was not a party to the suit.  He correctly observes that he was not even a party in the ruling that terminated the suit.  But the decree that was drawn subsequent to termination of the suit included him as a party.  No application was ever made to make him a party.  No leave of court was sought to enjoin him as a party to the suit.  His inclusion seems to have come from the blues.

8. The Respondents fault Francis for not following procedure laid down for objecting to attachment.  Francis is layman.  It is clear that before even settling for prosecution of this application, he had other previous attempts to raise the same issue.  It is clear he was fumbling and did not have much knowledge as to what procedure to follow.  All he seems to have been sure of is that he was aggrieved and needed court’s help.

9. In contrast, the Respondents are represented. One would presume that they would follow procedure.  But they enjoined Francis as a party in a very unprocedural manner.  It lies ill in their mouths to accuse Francis of not following procedure while they themselves were the first to act in utter disregard of procedural requirements.

10. I expected the Respondents to amplify or substantiate the grounds of opposition they raised in response to the application.  They didn’t do that and as things stand, it is not clear what they mean when they allege that the application is ineptly drawn or that the court is functus officio or even that Francis has no Locus Standi. Their submissions should have come clear on that.  The Respondents however chose to focus on other things.

11. The Respondents wronged Francis. They had no good basis for doing so. The application of Francis is therefore meritorious.  I allow the application in terms of prayer (b).  I also award costs to Francis.

Dated, signed and delivered at Busia this 5th day of February, 2019.

A. K. KANIARU

JUDGE

In the Presence of:

Applicant Not a Party: Present

2nd Plaintiff:  Absent

Respondents: Absent

Counsel for Plaintiff: Absent

Counsel for Respondents: Absent

Court Assistant: Nelson Odame