John Kayeli Olaka v Alfred A Olaka, Lawrence M Olaka, Hoskin Indimuli Olaka, Isaac Wanyonyi Masinde & George Biketi Wafula [2014] KEHC 1876 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISCELLANEOUS  CIVIL   APPLICATION NO. 49 “B”   OF  2012

[formerly Busia misc. application no. 185 of 2011]

JOHN KAYELI OLAKA & …..................................…............APPLICANT

VERSUS

1. ALFRED A. OLAKA

2. LAWRENCE M. OLAKA

3. HOSKIN  INDIMULI OLAKA …................................. RESPONDENTS

AND

1. ISAAC WANYONYI MASINDE

2. GEORGE BIKETI WAFULA ….........................INTERESTED PARTIES

RULING

1.   The applicants herein are  Isaac  Wanyonyi Masinde and George   Biketi Wafula.  They have filed this notice of motion under  sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 45 rule 1 and    51 rule 1 of the Civil Procedure Rules seeking the court to review and  or set aside the order made on 27th April 2011 to the effect  that the Executive Officer Kimilili court signs all relevant documents on behalf     of the objectors/respondents to  transfer parcel nos. 5386 and 4782 in the name of the  1st  claimant.  They also prayed for costs of the application.

2.   The application is supported by the grounds on the face of it and two affidavits deposed by each of the applicants. The    claimants/respondents and objectors/respondents were served  but they have not filed any documents to challenge the motion. I will thus consider the motion on  its merits  though it is unopposed.

3.   This application  ought to  have been heard by Kimilili Senior Principal Magistrate's court that  issued the order sought to be reviewed.  However when the  Environment and Land Court  Act became operational, all land matters were transferred to the Environment and Land Court.  Secondly, there were two matters pending before the high court  vide Bungoma HCCC no. 10B of  2012    and Bungoma HCC no. 185 of 2011 which  touched on the same subject matter and some of the parties herein. Muchemi J made an order  on  15th May  2012 transferring Kimilili SRMC land  case no. 22 of 2008 to the court. I thus agreed  on the basis to hear the     application.

4.   The applicants aver that they are the registered owners of L.R. Bungoma/Kamukuywa/5086 and 4782 respectively and have annexed copies of their titles to the application. They were not parties to the case that was before the Tongaren Land Disputes Tribunal hence they are being  divested of their titles  without being heard.  I have perused the proceedings and award of the Tongaren  Division Land Disputes Tribunal, the  land parcels indicated to be in dispute and which was awarded were Bungoma/Kamukuywa/834, 835 and 836 which originated from Bungoma/Kamukuywa/593 to  the claimants.  The applicants have  annexed copies  of the decree    from Kimilili  SRM's court in land case no.  22 of 2008 and a decree in Bungoma CMC land case no. 35 of 2009.  In the first decree,the applicant's titles are amongst those included in the order  to be transferred to the claimants/respondents.

5.   From the proceedings of the Divisional Tribunal, it is not clear  how several other numbers were included in the  vesting order yet  they     were not contained in the award.  The 2nd decree from Bungoma CM's court shows the appeal to Western Province Land Dispute Appeals Committee was successful. This court was able to find  and  read the proceedings of the  appeals committee which  revoked the decision of  the Tongaren Land Disputes Tribunal.  The decision of the Appeals Committee after adoption became  the decree which remains as an order of the court.  I find two reasons why I should allow the  motion  as satisfying the requirements of  order 45.  First the   applicants were never party to the tribunal and the Tongaren land Disputes Tribunal never included  their parcels of land in their   award.  They qualify as parties aggrieved under order 45.  Secondly,  if the decision  of the Tongaren Division Land Disputes Tribunal was  overturned on appeal then there was no decree capable of being executed in Kimilili Land  case no. 22 of 2008 hence there is an error  apparent on the record.  Consequently I allow the application to   the  extent that the order dated 27th April 2011 which  directed the Executive Officer Kimilili court to sign transfers and all relevant documents  transferring L.R.  5086 and 4782 is hereby reviewed and is set aside.  This order is strictly  applicable to the two parcels of    land  the  subject of this application.  Costs of the application are not   awarded as the application was not opposed.

DatedandDelivered in Bungoma this 7th day of October 2014.

A. OMOLLO

JUDGE.