Maurice A. Wanjala v Anna N. Wanjala & 11 Others [2015] KEHC 2384 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 17  OF 2011

MAURICE A. WANJALA …...........................…......................  PLAINTIFF

VERSUS

ANNA N. WANJALA & 11 OTHERS .........................................  DEFENDANT

R  U  L  I  N  G

1. The applicant Maurice Wanjala brought a notice of motion dated 5. 12. 2013 in which he seeks an order vacating the order of this     court given on 26. 6.2013 staying this suit. The applicant contends that he has since withdrawn the present suit against the respondent and  that therefore the order staying this suit is therefore of no effect.

2. The applicant's application is opposed through a replying affidavit filed by the respondent  in court on29. 1.2015. The        respondent contends that she is not aware whether the suit  against her had been withdrawn and that even if that was the case, this application is made in bad faith as any orders which may be granted will have far reaching consequences in the present case. She is therefore opposed to the vacation of the orders staying this suit which orders were given after all parties were fully heard.

3. I have considered the applicant's application as well as the opposition to the same by the respondent.The only issue for   determination in this suit is whether the orders of 26. 6.2013have been rendered ineffective following the withdrawal of the suit against the respondent or not.The respondent herein had filed an originating summons against the applicant herein in Kitale HCCC. No.130 of 2010. The respondent had sought a declaration that the applicant was holding five acres in trust for her out ofLR.No. Waitaluk/Kapkoi Block 10/Kapkoi Sisal/152and that the said five acres should vest in her. The applicant subsequently filed the present suit against the respondent and eleven others seeking orders of eviction. The respondent herein moved the court seeking orders of stay of proceedings in this case pending the hearing and determination of the originating summons which she had filed earlier on. The respondent's application was granted and the present suit was stayed pending determination of the originating summons.

4. The applicant herein did not file any appeal against the court's ruling of 26. 6.2013. He instead filed a notice of withdrawal of  this suit against the respondent who was the first defendant.  It is on this basis that the applicant now seeks orders that by virtue of  the withdrawal of the suit against the respondent, the orders staying this suit have been rendered ineffective and ought to be vacated.

5. The present suit was filed against the respondent and eleven   others on the ground that the respondent had sold part of the suit land to the eleven defendants.The suit land is the subject matter in both suits.The withdrawal of the suit against the first     defendant (respondent) only does not change the position. The fact remains that the suit property is the same and the respondent   cannot be severed from this suit by the mere fact that her name has been removed. She is at the centre of this suit just as in the        other one. The orders of 26. 6.2013 have therefore not been rendered ineffective as claimed by the applicant. There was an         issue raised that the respondent was not served with notice of withdrawal of this suit. Order 25 rule 1 of the civil Procedure Rules 2010 provides that a plaintiff may at any time before the setting down of the suit for hearing give notice in writing    discontinuing the suit against any or all the defendants. Such notice is required to be served on all parties. There is no evidence      that the withdrawal notice was served on all the parties leave alone  the respondent.

6. I do not find any merit in this application.  The same is hereby dismissed with no order as to costs.

It is so ordered.

Dated, signed and delivered at Kitale on this 28th day of September, 2015.

E. OBAGA

JUDGE

In the presence of Applicant .  Court Assistant -  Winnie

E. OBAGA

JUDGE