MERCY WANGARI, JAMES KIBE, PETER MWAURA & KAYOLE BIDII JUA KALI ASSOCIATION V HIRAM GITONGA MBOGO, WALTER OKEO MBATA, FRANCIS NGEMA WAITITU, ANN WAITITU NGEMA, JULIUS NJOGO NGARI, FERDINED WAITITU, MARTIN NJUGUNA MWANGI & SALONE NASHILILE [2012] KEHC 3822 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA ATNAIROBI

ENVIRONMENTAL & LAND CASE 558 OF 2009

MERCY WANGARI

JAMES KIBE

PETER MWAURA

KAYOLE BIDII JUA KALI ASSOCIATION ……..........…….. PLAINTIFFS

VERSUS

HIRAM GITONGA MBOGO

WALTER OKEO MBATA

FRANCIS NGEMA WAITITU

ANN WAITITU NGEMA

JULIUS NJOGO NGARI

FERDINED WAITITU

MARTIN NJUGUNA MWANGI

SALONE NASHILILE …………........................……….…… DEFENDANTS

RULING

The notice of motion dated 31st October, 2011 is taken out by the Defendants. They are seeking for orders that the orders made by Muchelule, J on 19th July, 2011, and delivered by Koome, J (as she then was) on 28th October, 2011, be reversed and set aside.

This application is supported by the grounds that there is an error apparent on the face of the record. The errors are further explained in the supporting affidavit sworn by Francis Gema Waititu on 31st October, 2011. According to the applicants, Muchelule, J wrote the ruling dated 4th July, 2011 in respect of the wrong application which had been determined. Indeed, the ruling of 19th July, 2011, is word for word similar to the one that was delivered on 26th July, 2010. That ruling was in respect to an application for injunction that had been determined.

Following the ruling of 26th July, 2010, the defendants filed a notice of motion dated 30th December, 2010, in which they sought for an order of stay of the orders of 26th July, 2010, and the setting aside or discharge of the order of 26th July, 2010.

Incidentally, the Judge made the same orders which in my view, is an error apparent on the face of the record. Mr Gachomo, learned counsel for the plaintiffs agreed that the Judge did not indicate which application  was the subject of this was ruling.

Upon consideration of the matters stated in the application, the replying affidavit and submissions by both counsel, I am satisfied that there is an error apparent on the face of the ruling that was written by Muchelule, J and signed on 19th July, 2011.

Accordingly, those orders made therein are set aside.  The order that commends itself in the meantime is the one for maintenance of status over the property known as LR No. A1-602, Kayole Services Scheme, until the hearing and determination of the suit. Parties are directed to prepare the main suit for hearing by complying with the Civil Procedure Rules within 60 [sixty] days.

Costs of the application shall be in the cause.

Ruling read and signed this 3rd day of February, 2012.

MARTHA KOOME

JUDGE OF APPEAL

Note:

This application was heard and concluded on 15th November, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceed to write and append my signature thereto in my new capacity.