John Musyoki Mwangangi v Pamela Bwari Onyambu, Kipruto Kandie, Daniel Kianda Muthui, Florence Mauncho, Christine Morara Maisha, Tobias Okoth Otieno, Linus Moruri Nyamoko, Chief Land Registrar, Mavoko Sub-County Registry & Attorney General [2019] KEELC 1426 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO. 202 OF 2018

JOHN MUSYOKI MWANGANGI...................................................PLAINTIFF

VERSUS

PAMELA BWARI ONYAMBU...............................................1ST DEFENDANT

KIPRUTO KANDIE................................................................2ND DEFENDANT

DANIEL KIANDA MUTHUI...............................................3RD  DEFENDANT

FLORENCE MAUNCHO.....................................................4TH  DEFENDANT

CHRISTINE MORARA MAISHA........................................5TH DEFENDANT

TOBIAS OKOTH OTIENO...................................................6TH DEFENDANT

LINUS MORURI NYAMOKO..............................................7TH DEFENDANT

THE CHIEF LAND REGISTRAR........................................8TH DEFENDANT

THE MAVOKO SUB-COUNTY REGISTRY.......................9TH DEFENDANT

THE HON. ATTORNEY GENERAL..................................10TH DEFENDANT

RULING

1. In the Notice of Motion dated 25th February, 2019 (sic) and filed on 24th January, 2019, the 2nd - 7th Defendants are seeking for the following orders:

a.That the Immigration Department of Kenya do hereby furnish to the court by way of an Affidavit and or certified confirmation the current travel and residency status in Kenya of John Musyoki Mwangangi ID. No. 7132758 and Passport No. A1130960 the Plaintiff herein.

b.That the costs of this Application abide the outcome of the suit.

2. The Application is supported by the Affidavit of the 2nd Defendant who has deponed that he knows the Plaintiff; that at the time of filing the suit, the Plaintiff used to work for the Ministry of Lands, Survey Department, before moving out of the country; that the Plaintiff was not in the country at the time of filing the suit and that upon inquiry from the Immigration Department, he was informed that he needs a court order before he could be furnished with the information pertaining to the Plaintiff’s whereabouts.

3. Although the Plaintiff was granted leave to file a Replying Affidavit within fourteen (14) days on 20th March, 2019, he had not filed any response as at 9. 00a.m on 18th June, 2019. Indeed, when the Application was mentioned on 18th June, 2019, neither the Plaintiff nor his advocate were in court.

4. However, it would appear that the Plaintiff filed a Replying Affidavit sworn on 17th June, 2019 on 18th June, 2019.  Having failed to comply with the directions of the court of 20th March, 2019, and having not served the Defendants’ advocate with the Replying Affidavit that was filed on 18th June, 2019, I find that the Plaintiff’s Replying Affidavit filed in court on 18th June, 2019 is not properly on record. The same is therefore expunged from the record.

5. Having expunged the Replying Affidavit sworn on 17th June, 2019 and filed on 18th June, 2019 from the record, the 2nd - 7th Defendants’ Application dated 25th February, 2019 and filed on 24th January, 2019 remains unopposed.

6. The Defendants’ Application shows that it was received in the registry on 24th January, 2019. However, the official receipt shows that the same was paid for on 25th January, 2019, a day thereafter.

7. It is trite that a pleading cannot be received by the registry before the requisite court fees has been paid. How then was the Application received by the registry on 24th January, 2019 before the requisite court fees was paid?

8. Furthermore, the Application is dated 25th February, 2019, one month after it had been received in the registry!  The Affidavit in support of the Application is shown to have been sworn on 25th January, 2019, a month before the Application was dated.

9. The discrepancies on the actual date of the Application; the date when the Supporting Affidavit was sworn and the dates on when the Application was received in the registry and paid for were not explained at all by the Defendants’ advocate.

10. Having failed to explain the numerous discrepancies on the face of the Application and the Affidavit, I find the Application dated 25th February, 2019 and filed on 24th January, 2019 to be incompetent. The Application is struck out with no order as to costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 4TH DAY OF OCTOBER, 2019.

O.A. ANGOTE

JUDGE