Malala Lubale Luvisia v Chrispinus Egesa Tangara, James Oseme Tangara & Jonai Namukuru Tangara [2013] KEHC 843 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

H. C.C. NO. 0066 OF 2011(O.S)

IN THE MATTER OF SECTION 37 AND SECTION 38 OF THE

REGISTERED LAND ACT (CHAPTER 300 OF THE LAWS OF KENYA).

AND;

IN THE MATTER OF THE LIMITATION OF ACTIONS ACT (CHAPTER 22 OF THE LAWS OF KENYA.

AND;

IN THE MATTER OF ORDER 37 AND ORDER 51 OF THE CIVIL PROCEDURE RULES, 2010, AS MADE UNDER SECTION 81 OF THE CIVIL PROCEDURE  ACT (CHAPTER 21 OF THE LAWS OF KENYA);

BETWEEN;

MALALA LUBALE LUVISIA ……………………………………..APPLICANT

VERSUS

CHRISPINUS EGESA TANGARA ……………………1ST RESPONDENT

JAMES OSEME TANGARA …………………………..2ND RESPONDENT

JONAI NAMUKURU TANGARA……………………..3RD RESPONDENT.

R U L I N G.

The Applicant, Malala Lubale Luvisia, filed  the Notice of Motion dated  1. 2.2012 under certificate of urgency through M/S. Manwari & company Advocates . He  seeks for  inhibition orders in respect of Bukhayo/Ebusibwabo/4216 and 4217 pending  the hearing and determination of the suit filed herein through  originating summons dated 26. 9.2011. The  application  is based on eight grounds on the application  and affidavit  in support, sworn by Julius Orina Manwari sworn on 1. 2.2012.

The application  is opposed  through  the replying affidavit of Chrispinus  Egesa  Tangara, the 1st Respondent , sworn  on13. 7.2012 and filed through M/S. Korongo & company Advocates.

On 30. 7.2013, both counsel  consented to proceeding with the application through written submission. The Applicant’s counsel  filed their written  submissions dated 16. 9.2013 on the same date.  On 9. 10. 2013  counsel holding brief  for Respondent’s counsel  indicated they would not be filing written submissions and the matter was placed for ruling.

I have carefully considered the grounds  on the face of the application, the supporting and replying affidavits plus the submissions by Applicant’s counsel  and find as follows;-

That  among the many provisions  of the law cited in the heading  of the application, only  Order 51 of Civil  Procedure  Rules  provides  for the  procedure. Even  though  the Applicant  filed the application through his counsel, the specific rule in Order 51 of the Civil Procedure Rule that was being  relied upon was not specified.

That  the supporting  affidavit was sworn by the Applicant’s  counsel and contains  factual matters which are likely to be contentious and would have been preferable had  it been sworn by the Applicant as is the practice  in such affidavit.

That  as the purpose of the application is ensure the status of properties, subject matter of or this suit,  are safeguarded  or assured and the orders  in terms of  prayers 1, 2, and 3 were granted on 06. 02. 2012, l find  the same status  should continue  to obtain  for the sake of justice pending hearing and determination of the suit.

For reasons  set out above the application dated 01. 02. 2012 is granted  in terms of prayer 6 with  costs in the cause.

S. M. KIBUNJA,

JUDGE.

DATED, DELIVERED ON 27TH DAY OF NOVEMBER, 2013.