MARY WACHANA WAFULA v JOSEPH WANDERA OWINDI & RAILI OWINDI [2011] KEHC 1192 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT KITALE.

PETITION CAUSE NO. 4 OF 2011.

MARY WACHANA WAFULA ::::::::::::::::::::::::::::::::::::::::::::: PETITIONER.

VERSUS

JOSEPH WANDERA OWINDI   )

RAILI OWINDI                             ) ::::::::::::::::::::::::::::::::: RESPONDENTS.

R U L I N G.

1. The pleadings in this petition show that a dispute regarding LR. No. Trans Nzoia/Makutano/31 was determined in High Court Kitale HCCC No. 131 of  2000. A judgment by W. Karanja – J dated 3rd November, 2004 pronounced a judgment in favour of Joseph W. Owindi and Raili Owindi who were the plaintiffs as against Wafula Sitialo who was the defendant. This was followed by several applications seeking a stay of execution, culminating with an application in a fresh suit being HCCC 28 of 2008 Meshack Wafula Sitialo and Mary Wachana Wafula – Plaintiffs against Diana Jill Onguko & James B. Onguko, the defendants. By a ruling dated 24th June, 2011, I expressed my self thus;

“I find this application that seeks for stay of an eviction order issued in another suit bad in law. It is hereby disallowed, and the names of the 3rd and 4th defendant were irregularly added by an Amendment that was not sanction by court, after 3 years since the suit was filed.”

2.   As the pleadings show, the petitioner is the 1st plaintiff in Kitale HCCC No. 28 of 2008. The petitioner has now filed this petition pursuant to the provisions of the Constitution of Kenya, 2010 seeking for several declarations. Simultaneously with the filing of the petition, the petitioner filed a Notice of Motion dated 18th July, 2011. It is alleged that the petitioner’s fundamental rights and freedoms as provided for under section 28, 31, 40 & 50 of the constitution were infringed upon.

3.    When the Notice of Motion came up for directions, Mr. Kajwang, learned counsel for the petitioner, requested this matter be referred to the Hon. Chief Justice for him to constitute a bench of three judges as prayed under prayer No. 3 of Notice of Motion.

4. There is a judgment and 3 rulings made by this court relating to the suit property. Although the petitioner is not preferring an appeal or discussing the merits or demerits of the ruling, Mr. Kajwang submitted that it will be in the interest of justice to have a larger bench to look into the issues raised in the petition. Secondly, the petitioner raises issues touching on her fundamental rights regarding ownership of a property by a woman within matrimony. The issue of a decree which touches on the rights of a party which was not a party to the suit has been raised in this petition.

5.   The directions sought by the petitioner were opposed by the respondent. Mr. Wanjala, learned counsel for the respondent submitted that this court is competent to determine matters of fundamental rights under the constitution. The grounds raised by the applicant are similar to the grounds raised in the previous applications which had been determined by this court.

6. In considering the issues raised in this petition it is a fact that this court has already expressed itself in the ruling dated 24th June, 2011, there is also a judgment and other rulings by other Judges of this court. The petitioner claims that her fundamental rights regarding ownership of property require interpretation in view of the provisions of the Constitution.   I am of the opinion that the petitioner should not be denied the opportunity to present her case before the constitutional Court after all there is a division set up to deal with constitutional and human rights issues.

7. Accordingly, I direct this file be placed before the Hon. The Chief Justice for directions and further orders. I am however not inclined to grant any interim orders.

Ruling read and signed this 22nd day of September, 2011.

MARTHA KOOME.

JUDGE.