Mogusu Ndubi & 3 others v Mesa Mogusu & another [2012] KEHC 2285 (KLR)

MOGUSU NDUBI ......................................... 1ST PLAINTIFF

KENEDY NDUBI........................................... 2ND PLAINTIFF

AMBROSE NDUBI...................................... 3RD PLAINTIFF

NYANGECHI NDUBI ................................... 4TH PLAINTIFF

-VERSUS-

MESA MOGUSU ..................................... 1ST DEFENDANT

HON. ATTORNEY GENERAL ................ 2ND DEFENDANT

RULING

The plaintiffs and the 1st defendant have had a long standing dispute over land parcel Nos North Mugirango/Boisanga 1/2209 and 2210. According to the documents before court, the land originally their father’s originally belonged to one Mogusu Matongo (deceased). Mogusu Matongo had two wives one Kerubo Mogusu (the defendant’s mother) and one Moraa Mogusu (the plaintiff’s mother). During the land adjudication process, around 1965 the suit land was registered in the name of Moraa Mogusu the plaintiffs’ mother, the defendant’s mother having died in the mid 1940’s.

In 2006, the defendant lodged his claim with the Ekerenyo Land Disputes Tribunal (claim No. 12 of 2006) against the plaintiffs. The Tribunal found in his favour and ordered that one of the land parcels namely Boisanya/495 in the names of Moraa Mogusu be given to Kerubo Mogusu (deceased) to be transmitted to Mesa Mogusu, the 1st defendant while parcel No. Boisanga 496 remain in Moraa Mogusu’s name to be transmitted to the plaintiffs. The Tribunal’s award was subsequently adopted by the Nyamira Resident Magistrate’s court on 16th August 2007.

On 3rd September 2007, the plaintiffs obtained letters of administration Ad Litem in respect of the estate of Moraa Mogusu who had passed on, on 13th March 1994. They have now sued the defendants.

In the suit filed on 28th April, 2011 they seek a declaratory order that the decision of Ekerenyo Land Disputes Tribunal dated 13th June, 2007 which was adopted by the Nyamira Resident Magistrate’s court vide Misc. Application No. 25 of 2007 revoking title of land parcel Nos. North Mugirango/Boisanya 1/2209 and 2210 and awarding the same to the defendant was unlawful, null and void. They also seek a permanent injunction against the 1st defendant from interfering in any way with the suit land.

Contemporaneously, the plaintiffs filed the instant application seeking orders that:-

i.That pending hearing and determination of this suit, a temporary injunction be issued against the defendant, restraining him, members of his family, servants and/or agents from entering or remaining in LR Nos. North Mugirango/Boisanga/2099/2210 or in any way interfering with quiet possession and use of the suit land by the applicants/plaintiffs.

ii.That pending hearing and determination of this suit, the defendant, members of his family, servants and/or agents be restrained from entering into the aforesaid parcels of land and cutting down farm products such as trees and carrying them away for his use.

iii.Costs of this application be provided for.

The application is premised on the grounds that the Tribunal had no jurisdiction to hear and determine the dispute over the suit land as the same was registered land, that the respondent had no locus standi to commence proceedings at both the Tribunal and the RM’s court; and, that the court adopted an illegal decision of the Tribunal.

In the supporting affidavit, the 3rd plaintiff faults the respondent for undertaking proceedings both at the Tribunal and the lower court without having obtained letters of administration. He avers that the respondent has subsequently forcefully taken possession of the suit land and may execute the decree. In a further affidavit in support, the 3rd plaintiff avers that the 1st respondent has neither entered appearance nor filed defence and that the suit ought to be heard by way of formal proof. He has urged the court to grant a temporary injunction pending such formal proof.

I have considered the application and the record. The 1st defendant has neither entered appearance filed defence nor opposed the application. The Attorney General has also neither entered appearance, defence nor reply to the present application. I note that he is erroneously named in the application not as a defendant but ‘2nd plaintiff’.

It is apparent form the record that both the plaintiffs and the 1st defendant have a claim over the suit land, the same having been originally family land and subject to inheritance by both parties. However, the 1st respondent has ignored court process in respect of both the suit and the application. He has not deemed it fit to either oppose the application nor file a defence and counter-claim if any to prosecute his interest.

In the circumstances, the application stands unopposed. The averments in the supporting affidavit are not controverted and must be taken as true. Consequently, the application dated 26th April, 2011 is allowed. I make no order as on costs.

Orders accordingly.

Ruling dated, signedand delivered at Kisiithis 20th day of September, 2012.

R. LAGAT-KORIR

JUDGE

In the presence of:

.................................... for applicant

.................................... for respondent

.................................... court clerk

R. LAGAT-KORIR

JUDGE