Kibii Koskei v Kiplangat Arap Mutai, Samwel K Ngeno, Elisheba Iminza Khayeri & Justine Kiprotich Beimok [2016] KEELC 1189 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT  OF  KENYA

AT NAKURU

ELC NO. 241 0F 2013

KIBII  KOSKEI  …………………………….………….PLAINTIFF

VERSUS

KIPLANGAT   ARAP  MUTAI  ……..…….1ST RESPONDENT

SAMWEL  K  NGENO…………….…….…..2ND  RESPONDENT

ELISHEBA  IMINZA   KHAYERI  .......…….3RD  RESPONDENT

JUSTINE  KIPROTICH   BEIMOK ….....….4TH  RESPONDENT

RULING

1. On 9th June 2015, counsel for the 5th defendant, Mrs. Chesaro, orally applied in court that this suit be dismissed for two reasons :-

(i)    That the plaintiff, Kibii Koske, and the 2nd defendant Samwel K. Ngeno are deceased and that the suit has abated.

(ii)   That there is a previous suit, Nakuru HCCC No. 145 of 2007 which has been finalized.

2. Ms. Jennifer Ndeda, learned counsel for the plaintiff, was not ready to reply to these issues and sought time to do so. I directed that counsel do address herself on the two issues and respond on 21 October 2015.

3. On that day, Mrs. Chesaro did not appear and an affidavit was filed by Mrs. Gladys Ndeda for the plaintiff giving reasons why the suit should not be dismissed. In her affidavit, Mrs. Ndeda has stated that truly the plaintiff has died but an application to substitute had been made and the same was allowed by consent. The consent was entered into on behalf of the 5th defendant by his previous counsel on record M/s Gordon Ogolla & Associates, before Mrs. Chesaro came into the picture through a notice of change of advocates, and was filed in court on 13TH  February 2013. On the alleged previous suit, that is Nakuru HCCC No. 145 of 2007, Mrs. Ndeda deposed that it is not true that the same has been finalized. She further deposed that there is in fact a pending application filed by the 5th defendant herein in that suit, seeking orders to have that case consolidated with this one. She annexed a copy of the application dated 1st February 2013, seeking the said orders.

4. I have looked at the documents presented by Mrs. Ndeda, and I do not find any merit in the application made by Mrs. Chesaro. I have seen that substitution of the deceased plaintiff was allowed by consent and his legal representative, Mr. Daniel arap Bii made the plaintiff in place of the deceased original plaintiff. On the other suit, there is no proof that the same has been finalized and I have no reason to doubt Mrs. Ndeda. On the allegation that the 2nd defendant is deceased, I am afraid that there is no proof of such.

5. Given the above reasons, I see no merit in the application made by Mrs. Chesaro. It is hereby dismissed with costs.

6. It is so ordered.

Dated, signed and delivered in open court at Nakuru this   21st Day of January 2016.

MUNYAO  SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence of -:

Ms  Kipruto  for the   plaintiff/respondent

Mrs  Chesaro  for 5th  defendant/applicant

N/A on part of Sheth & Wathigo   for  1st   - 4th  defendants.

MUNYAO  SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU