Jacob Omondi Nyambega, Kennedy Omollo Onyango, Samwel Otieno Obuya, Philip Otiende Adundo, Simon Omondi Akina & Pauline Akwach v Victoria Comfort Inn Limited, Kenya African National Union, Nick Salat, Gideon Moi & Attorney General [2021] KEELC 3573 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 136 OF 2016

JACOB OMONDI NYAMBEGA.............................................1ST PLAINTIFF

KENNEDY OMOLLO ONYANGO........................................2ND PLAINTIFF

SAMWEL OTIENO OBUYA...................................................3RD PLAINTIFF

PHILIP OTIENDE ADUNDO..................................................4TH PLAINTIFF

SIMON OMONDI AKINA........................................................5TH PLAINTIFF

PAULINE AKWACH.................................................................6TH PLAINTIFF

VERSUS

VICTORIA COMFORT INN LIMITED...............................1ST DEFENDANT

KENYA AFRICAN NATIONAL UNION..............................2ND DEFENDANT

HON. NICK SALAT.................................................................3RD DEFENDANT

HON. GIDEON MOI................................................................4TH DEFENDANT

ATTORNEY GENERAL..........................................................5TH DEFENDANT

RULING

M/s Owendo Kibet and Khalid advocates have come to court on behalf of the 2nd and 4th Defendants seeking orders that the honourable court be pleased to strike out all pleadings including the statement of defence field on behalf of the 2nd and 4th Defendants by the firm of Olel Onyango Ingutia & co. advocates.

Moreover, that the court be pleased to grant leave to the 2nd and 4th Defendants to file and serve a statement of defence, Witness statement, Bundle of documents and any other pleadings herein.

The application is supported by the affidavit of Gideon Kipsieki Tome Moi the national Chairman of the 2nd Defendant and the Elected Senator of Baringo County. He states that he was not served with summons to enter appearance in this matter and consequently he is not aware of the existence of the suit nor sale of the suit property. That the position taken by the law firm of Olel, Ingustia & Co. Advocates does not reflect the position of the 2nd and 4th Defendants. This court should safeguard their constitution right to fair trial.

That the 2nd Applicant’s Constitution provides that all its properties were to be transferred from trusteeship of branch officials to the 2nd Applicant’s Foundation which was to be formed. Unfortunately, the 2nd Applicant being a political party could not form and register a foundation hence the process halted and as a result the status quo prevailed. The effect was that the local branch officials remained as the trustees to the 2nd Applicant’s property including the suit property herein where the 1st to 3rd plaintiffs were the legitimate trustees.

That should this honourable court not intervene, the 2nd Applicant’s right to equal protection of the law and its right to hold property shall be greatly infringed as the suit property will pass to the 1st defendant through a flawed and fraudulent process.

Francis Rayola Olel filed a replying affidavit stating that the Instructions acted upon by the firm were given by the 3rd defendant who is the Secretary General of the 2nd Defendant. That the 3rd Defendant was within his power to appointed the firm of Olel Onyango Ingutia & Co. advocates to defend the suit.

That their firm has handled all dispute revolving around the suit property from 2012 to date and the 2nd and 4th Defendants cannot wish away their representation and/or turn their back on us based on their own convenience. That as can be gleaned from the joint Replying Affidavit filed in court on 7th April 2017, on 12th March 2013 the National Execution Committee of the party did meet (in a meeting chaired by the 4th Defendant) and the issue of sale of the suit property was discussed and minuted thereof signed by both 3rd and 4th defendants.

After the Determination of Political Part tribunal claim No. 3 of 2014 as directed by the tribunal the local branch official did meet with the National Official and it was expressly official and it was expressly agreed that the branch official hold the property in trust for the part and that the suit property will be sold to settle party liabilities and the Branch officials were property will sold to settle party liabilities and the branch officials were to get Kshs.10,000,000/= as reimbursements for expense used to.

Due process was followed to sell this property and there were several bidders before the party settled upon the 1st Defendant.

That our firm did not manufacture documents to support the case of the 2nd, 3rd and 4th defendant all such documents were obtained from the 2nd defendant’s office with express authority of the 3rd defendant in his official capacity as the principal officer of the party.

That while it is within the individual rights of the 2nd and 4th defendants to change advocates, their aim to distort facts of this case cannot go unchallenged.

That the 2nd and 4th Defendant attempt to change facts and pleadings is driven by selfish agenda to deny the 1st Defendant full benefit of this property.

That it would be prudent for the 2nd, 3rd and 4th Defendant should hold internal/in house meeting and resolve their dispute in avertedly instead of embarrassing themselves with divergent opinion in court.

I have considered the application and the replying affidavit and do find that there is no evidence that the 4th Defendant was served with the summons to enter appearance and that he instructed the firm of Olel Onyango Ingutia & co. advocates to enter appearance and file defence and therefore the defence filed on behalf of the 4th defendant by the firm of Olel Onyango Ingutia & co. advocates is hereby struck out.

However, there is evidence that Hon. Nick Salat, the Secretary General of the 2nd Defendant gave instructions to the firm of Olel Onyango Ingutia & co. advocates to file appearance and defence on behalf of the 2nd and 3rd Defendants.

There is no demonstration   that the applicant herein holds the property of the party or that he is the sole trustee of the property of the party and therefore the application has no basis on behalf of the 2nd Defendant.

The upshot of the above is that the defence is struck out only as it touches on the 4th Defendant as he has a right to instruct an advocate of his choice.

The 4th Defendant to file and serve defence within the next 3 days. The Plaintiffs are at liberty to file reply to defence within 4 days. Hearing resumes on 4/5/2021. Costs in the cause.

DATED AT KISUMU THIS 22ND DAY OF APRIL, 2021

ANTONY OMBWAYO

JUDGE

This Ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2020.

ANTONY OMBWAYO

JUDGE