Michael Ombara Ajuoga v Samwel Machio Odanga [2015] KEHC 4948 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUSIA

ELC. NO. 31 OF 2014 (FORMERLY  HCC. NO. 47 OF 2010)

MICHAEL OMBARA  AJUOGA........................PLAINTIFF

VERSUS

SAMWEL  MACHIO ODANGA.......................DEFENDANT

AND

MONICA  FAUSTINE ADHIAMBO............1ST APPLICANT

HILLARY OKICHI OWOCHE.....................2ND APPLICANT

R U L I N G

MONICA  FAUSTINA ADHIAMBO  and HILLARY OKICHI OWOCHE,  hereinafter  referred to as the 1st and 2nd  Applicant,  filed the notice  of motion dated  26th January, 2015 praying for among others, that  they be enjoined in this proceedings as Defendants. The application  is based on five grounds on the face of the application and the Applicants supporting  affidavits, both sworn on 26th January, 2015  and further affidavit of 1st Applicant  sworn  on 3rd March, 2015.

MICHAEL OMBARA AJUOGA   and SAMUEL MACHIO ODONGA, who are the initial Plaintiff and Defendant respectively, are named as the 1st and 2nd Respondent.  The 2nd Respondent filed a replying affidavit sworn on 14th February, 2015 in which he supports the Applicants position  generally. The 1st Respondent filed his replying affidavit sworn on 16th February, 2015 in opposition to the application.

During the hearing of the application on 16th March, 2015, M/S. Unani and M/S. Maloba submitted on behalf of the Applicants and 1st Respondent  respectively, while the 2nd  Respondent  was in person.

The court  has considered  the grounds  on the application, supporting , replying  and further affidavits  by the parties and their submissions and find as follows;-

1. That the 1st Respondent commenced the suit through the plaint dated 15th October, 2010 naming the 2nd Respondent as the Defendant.

2. The 2nd Respondent was served with the court papers but never filed any defence  to  the claim.

3. That the  2nd Respondent  appointed  the firm of Namatsi & company advocates  who filed a notice  of appointment  dated 21st  July, 2014 after the firm  of Makokha  Oaka & company  advocates  were allowed to cease  acting for Defendant  on 25th March, 2014.

4. That on 25th March, 2014, the 2nd Respondent was granted the last opportunity  to file  and serve a defence  within 30 days  but none  has been filed to date.

5. That on 19th January, 2015, the 1st Respondent was allowed to prosecute his case and testified as PW 1. The court then reserved the judgment for 16th February, 2015.

6. That  before the date  set for judgment  , the  application  dated 26th January, 2015 was filed and orders issued on the same date  that it be served for interpartes  hearing on 16th February, 2015 which  was the date earlier  set for judgment.

7. That  paragraph 1, 3, 4, 5, 7, 8 and prayer 1 of the  plaint clearly  shows that the 1st Respondent had filed this suit against the 2nd Respondent, whom  he accused  of fraudulently subdividing  and acquiring  a portion  of the suit land, in his capacity as  the administrator  of the estate of Batholomew  Mukhando Oluochi. The 1st Respondent  had been  appointed as administrator  of the said estate in Busia H.C. Succession  Cause No. 18 of 2009 on 6th May, 2009.

8. That a copy  of the affidavit  in support  of the petition for letters of administration intestate  attached to the 1st Respondent’s  replying affidavit at paragraph 4  names the two Applicants herein as among those  surviving  Bartholomew  Mukhando Owoche. The  Applicants  have annexed a copy  of a notice  of motion  dated 24th January, 2015 in Busia H.C. Succession Cause  No. 18 of 2009  in which they seek the revocation of the grant issued to  1st Respondent on 6th May, 2009. There is nothing to indicate whether the application had been  heard and ruling delivered  by the time  of the hearing of this application.  That in the absence  of orders   revoking  the grant issued to the 1st Respondent on 6th May, 2009, the  1st Respondent  capacity  to file and prosecute  this suit cannot be faulted.

9. That the  1st Respondent ‘s  claim against  the 2nd Respondent  remains unrebutted or challenged as the 2nd Respondent  has  to date not  filed any defence. It is therefore confusing that the 2nd Respondent is supporting the Applicants application to reopen the case  and be enjoined as Defendants.

10.  That even though the Applicants have delayed in seeking to be enjoined in this suit, the court cannot ignore their predicament now that they have come forward. This court has a duty to hear and determine the matters that come before it expeditiously while ensuring justice is done to all who come before it. The1stRespondent had incurred expenses in prosecuting his case and was only awaiting the court’s judgment. By allowing the Applicants’ application, the 1st Respondent will have to incur additional costs as the matter will revert to the starting point.  The Applicants should therefore meet the costs of the 1st Respondent  up to the point the matter had reached.

12. That for reasons shown above, the Applicants’ application dated 26th January, 2015 is allowed in the following terms.

a. That the proceedings that took place on 19th January, 2015 are hereby set aside.

b. That the Applicants are hereby enjoined as 2nd and 3rd Defendants respectively.

c. The Applicants, as the 2nd and 3rd Defendants respectively are granted 15 (fifteen) days to file and serve their statement of defence.

d. That the Applicants will meet the costs incurred by the 1st Respondent/Plaintiff upto the filing  of this application.

e. That the costs of this application will be in the cause.

f. That the costs in (d)  above  are to be agreed within the next 14 days  and in default  to be taxed  and thereafter paid within 30 days  from the date of consent and or taxation.

S. M. KIBUNJA

JUDGE

DATED AND DELIVERED ON 7th .DAY OF MAY, 2015

IN THE PRESENCE OF;

PLAINTIFF/RESPONDENT…PRESENT

DEFENDANT/2ND RESPONDENT PRESENT…………………

1ST APPLICANT  ABSENT …………………………………………

2ND APPLICANT   ABSENT……………………………………………..

COUNSEL  MR. ASHIOYA FOR MALOBA FOR PLAINTIFF AND MR. MAKOKHA FOR MASINDE FOR APPLICANTS.

JUDGE