Julius Morkong Chemtai v Lewis Boiyo & 3 others [2014] KEHC 4911 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISCELLANEOUS  CIVIL   APPL. NO. 68   OF  2002

JULIUS MORKONG CHEMTAI ….....….....................................  PLAINTIFF

VERSUS

LEWIS BOIYO................................................................1ST RESPONDENT

REUBEN KIBELET........................................................ 2ND RESPONDENT

SILAS KIBELET …........................................................ 3RD RESPONDENT

GEOFFREY KIBELET.................................................... 4TH RESPONDENT

RULING

1.  The Applicant JULIUS MORKONG CHEMTAI  has moved the court by a notice of motion dated 13th February 2014 and filed in court on the  same date seeking the following orders;

i.       That the application be certified as urgent for reasons to be  recorded at the hearing hereof and the application be heard   exparte in the first instance.

ii.         That the Respondents by themselves, their workers, servants  agents and whomsoever otherwise be restrained from entering   into, demarcating, cultivating, planting any crops, leasing or building any structures thereon or from interfering in any other manner with land parcel number ELGON/NAMORIO/208    pending the hearing and determination of this application inter partes and pending the hearing and determination of this suit.

iii.        That an order be issued directing the District Land  Registrar and the District Surveyor Bungoma Mt. Elgon  Districts to visit land parcel no. ELGON/NAMORIO/208    and subdivide the same for the Applicant to get his two  acres in terms of the decree issued in Kimilili land case no.  9 of 2001.

iv.        That costs of this application be in the cause.

2. The motion is premised on the grounds on its face and the affidavit sworn by the Applicant.  The Applicant’s complaint is that the Respondents have entered his land without any lawful authority and planted eucalyptus trees covering the whole parcel. He also   wants  title for his two acres curved out of the suit land and given  to  him.

3. The application is opposed.  The Respondents filed a replying  affidavit sworn by the Silas Kibelet Simotwo on his behalf and on      behalf of the 1st , 2nd and 3rd . The replying affidavit raises inter alia in  paragraph 7 thereof that this court is functus officio since the judicial review application was dismissed on 17th July 2002.     Secondly that if the Applicant wishes to execute  the decree of the tribunal then he ought to have filed his application  in  Kimilili  Resident Magistrate land case no. 9 of 2001.

4. There are other issues raised in the replying affidavit but which I will  not venture into as the two grounds mentioned above (par. 3) will   determine this application without going into its merits or otherwise.    Mr. Were advocate for the Respondents in his submissions told court   that the judicial review application was dismissed on 17th July   2002.  This fact is not disputed by Mr. Ateya for the Applicant.

5. I have perused the record and confirmed it is true that application    brought for judicial review was dismissed on 17th July 2002 for    non-prosecution by the ex parte applicant.  This was a miscellaneous  application seeking judicial review orders.  The Applicant was an     interested party in those proceedings and was therefore aware of the dismissal order.  This applicant even proceeded to file his bill which     was taxed at Kshs. 40,000/= by consent.

6.  It follows therefore that once the application was dismissed, the entire         suit was closed and no further proceedings can be undertaken unless    and until the orders of dismissal have been set aside.  Mr. Ateya   submitted that this court has power to effect the rights of the Applicant.  I presume this line of submission is in light of prayer no.   (iii) of the application.  The Applicant still has doors open to use to  realize his rights, one of which is to have sought that prayer before   the court which adopted the award of the Tribunal.  Certainly this  court cannot assist the Applicant in the manner that it has come  before it. See case law Misc. app.  no. 98 of 2009 R vs. clerk,   County Council of Meru [2012] e KLR and section 8 (3) of the    Law Reform Act.

I therefore find the court is functus officio and is unable to hear  and determine the present application.  The application is hereby    ordered    struck off.  The earlier orders of injunction that were   issued on 17th February 2014 be and is hereby vacated.  The costs of    the application awarded to the Respondent.

Dated, Signed and Delivered in open court this  22nd   day of May    2014

A. OMOLLO

JUDGE.