Kilui & 8 others v Wafula & another [2022] KEELC 2837 (KLR)

Kilui & 8 others v Wafula & another (Environment & Land Case 113 of 2002) [2022] KEELC 2837 (KLR) (30 June 2022) (Ruling)

Neutral citation: [2022] KEELC 2837 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment & Land Case 113 of 2002

BN Olao, J

June 30, 2022

Between

Japhether Wamalwa Kilui

1st Plaintiff

John Siebela Musee

2nd Plaintiff

Johnson Wanjala Mafuta

3rd Plaintiff

Timothy Masinde Sindani

4th Plaintiff

Mary Wasike

5th Plaintiff

Fragnel Wawire Mirimo

6th Plaintiff

Henry Masibo

7th Plaintiff

Nicolas Masika Maikuma

8th Plaintiff

Titus Musuya Sakwa

9th Plaintiff

and

Mathew Munyole Wafula

1st Defendant

Ben Machabe Wafula

2nd Defendant

Ruling

1. By a ruling delivered on October 28, 2021, this Court reinstated the titles to land parcels No Kimilili/kimilili/2438, 2435, 2432, 2436, 2431, 2433, 2434, 2395 and 2323 into the names of the plaintiffs. That was following the plaintiffs’ Notice of Motion dated 6th May 2021. In addition to that order, I issued a warrant of arrest against the 2nd defendant Ben Machabe Wafula (now deceased) after both he and his brother the 1st defendant Mathew Munyole Wafula had been cited and found to be in contempt of the consent orders issued by this Court on March 8, 2011 and which Mukunya J, vide a ruling delivered on March 28, 2018, found both defendants to have disobeyed. The 1st defendant was subsequently fined Kshs. 50,000/= by Ombwayo J on March 15, 2022 at the Kisumu ELC.

2. It would appear that notwithstanding that consent order and my ruling delivered on October 28, 2021, the 1st defendant has continued to forcefully occupy the land parcels No Kimilili/kimilili/2323 and 2435.

3. I now have before me for my determination the plaintiffs’ Notice of Motion dated December 8, 2021seeking the following orders: -a.That the 1st defendant do voluntarily vacate the land parcels No Kimilili/kimilili/2323 and 2435 within 15 days of this application upon him.b.That in default of voluntary vacation per prayer (a), the 1st defendant be forcefully evicted from the said land parcels No Kimilili/kimilili /2323 and 2435. c.That the OCS Kimilili Police Station do provide security for the eviction per paragraph (b) hereof.d.That the costs of this application be provided for.

4. he application is premised on the grounds set out therein and is also supported by the 8th plaintiff’s (john Wanjala Mafuta’s) affidavit of even date.

5. The gist of the application is that following orders of this Court, the plaintiffs are the proprietors of the land parcels No Kimilili/kimilili/2438, 2435, 2432, 2436, 2431, 2433, 2434, 2395 and 2323. However, the 1st defendant has forcefully settled on the land parcels NO Kimilili/kimilili/2323 and 2435.

6. The application is opposed and by his replying affidavit dated February 28, 2022, Mathew Munyole Wafula the 1st defendant has deponed, inter alia, that he has lodged an appeal No E231 of 2021 against this Court’s ruling delivered on October 28, 2021. He adds therefore that this application be stayed pending the hearing and determination of the Court Of Appeal Civil Appeal No E23 of 2021 Lodged At The Eldoret Registry. Annexed to that replying affidavit is the memorandum and a document headed “Record of Appeal” which infact is not a record of appeal.

7. The application has been canvassed by way of written submissions. These have been filed both by MR J. S. Khakula instructed by the firm of J. S. Khakula & Company Advocatesfor the plaintiffs and by Mathew Munyole Wafula the 1st defendant acting in person.

8. I have considered the application, the rival affidavits and the submissions by Mr Khakula and the 1st defendant.

9. It is common knowledge that by a consent order issued onMarch 8, 2011, the land parcels No Kimilili/kimilili/2438, 2435, 2432, 2436, 2431, 2433, 2434, 2395 and 2323 were vested in the plaintiffs. This followed the plaintiffs’ plaint filed herein on August 27, 2002 in which they had pleaded, inter alia, that although they were in possession of the land parcels No Kimilili/ Kimilili/ 2438, 2435, 2432, 2436, 2431, 2433, 2434, 2395 and 2323 having purchased them following a sub – division of the land parcel No Kimilili/kimilili/108, the defendants had fraudulently cancelled those titles. Their titles have however now been reverted in their names. The 1st defendant has been cited for contempt for disobeying orders of this Court and has even been fined Kshs. 50,000/=. He has however refused to voluntarily vacate the land parcels NoKimilili/kimilili/ 2323 and 2435.

10. The 1st defendant’s response to that application is that he has filed in the Court of Appeal (Eldoret Registry) Civil Appeal No E231 of 2021. That this application should therefore be stayed pending the hearing of that appeal. He has however not filed any formal application in that respect.

11. Even assuming that such application was before me, it would have to meet the threshold of Order 42 Rule 6 of the Civil Procedure Ruleswhich is to demonstrate that he will suffer substantial loss, move the Court without unreasonable delay, offer security and show sufficient cause. It is common ground that the consent order dated March 8, 2011 was never appealed. The ownership of the land parcels No Kimilili/kimilili/2323 and 2435 from which the 1st defendant has refused to vacate is therefore no longer an issue. Having chosen not to appeal that consent Judgment, the 1st defendant cannot possibly lodge any competent appeal against the ruling dated October 28, 2022 when in his own earlier replying affidavit dated August 23, 2021, he said called upon: -“…….. the plaintiffs who are alive and representatives of the deceased. Plaintiffs avail themselves so that this Court’s Judgment is executed by implementing this Court’s orders of April 5, 2011. ”It is also the law under Order 42 Rule 6(1) of the Civil Procedure Rules that: -“No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order ………...” Emphasis mine.Therefore, the mere fact that the 1st defendant has filed an appeal against this Court’s ruling delivered on October 28, 2021 does not, as a matter of course, entitle him to a stay of execution of that ruling pending appeal.

12. An order of stay of execution is a discretionary remedy. It is not lost to this Court that the 1st defendant has already been fined Kshs. 50,000/= for disobeying orders of this Court. Given that fact, he cannot be deserving of the exercise of the discretionary powers of this Court in his favour. I have no doubt in my mind that he is abusing the process of the Court by employing the judicial process to the irritation and annoyance of his opponent and the effective administration of justice.– Muchanga InvestmentsLtd.v. Safaris Unlimited (Africa)Ltd& others C.A Civil Appeal No 25 of 2002 [2009 KLR 229]. Having consented to the orders which vested the land parcels No Kimilili/kimilili/2323 and 2435 to the plaintiffs, the 1st defendant is clearly abusing the process of this Court by forcefully occupying the said parcels of land, an averment which he has not even rebutted. The plaintiffs have asked this Court to order the 1st defendant to “voluntarily vacate the land parcels No Kimilili/ Kimilili/2323 and 2435 within 15 days of service of this application upon him.” I did not hear the 1st defendant say that it would be impracticable for him to do so within that period or that he will be rendered destitute if he voluntarily vacates or is evicted therefrom. Therefore, his continued unlawful occupation of the land parcels No Kimilili/kimilili/2323 and 2435 can only be construed as being deliberately aimed at being oppressive of the plaintiffs as well as defiant and disrespectful of the Court and it’s processes. That is conduct for which, unfortunately, the 1st defendant has now acquired a notorious reputation. He ought to have voluntarily vacated the said parcels of land as far back as 2011 when he conceded that they belong to the plaintiffs. Given the 1st defendant’s antecedents in this matter, I am not persuaded to give him the luxury of voluntarily vacating the suit land. His hands are irredeemably soiled and equity will not allow this Court to bend backwards any further.

13. Ultimately therefore and having considered all the issues herein, I make the following orders: -1. Mathew Munyole Wafulabe evicted from the land parcels NoKimilili/kimilili/2323 and 2435 forthwith in compliance with Section 152 G of the Land Act.2. The Officer Commanding Kimilili Police Station(OCS) to provide security to the Court Bailiff during the exercise should there be any resistance.3. The 1st defendant shall meet the costs of this application.

BOAZ N. OLAO.J U D G E30TH JUNE 2022. RULING DATED, SIGNED AND DELIVERED AT BUNGOMA ON THIS 30{TH DAY OF JUNE 2022 BY WAY OF ELECTRONIC MAIL.BOAZ N. OLAO.J U D G E30TH JUNE 2022.