Mohamed Abuod Mbwana, Bwanamkuu Mohamed Bwana, Ahmed Imamu Atman, Badi Muhammed Naggi Abdulla, Bakari Hamza Barkale, Twaha Mohamed Naggi, Kirtwas Imani Athman, Bakari Mohamed Athman, Ahmed Mohamed Assad, Ali Hamza Bakrale, Hassan Mohamed Sufuan, Ali Mohamed Assad, Nassir Mohamed Assad, Abuod Mohamed Hassan & Ali Athman Mohamed v Attorney General, National Land Commission, Rukia Bwarali Mohamed, Salma Mohamed Bwandamia & Bakari Mohamed Abdulrahman [2015] KEELC 148 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.46 OF 2015

1. MOHAMED ABUOD MBWANA

2. BWANAMKUU MOHAMED BWANA

3. AHMED IMAMU ATMAN

4. BADI MUHAMMED NAGGI ABDULLA

5. BAKARI HAMZA BARKALE

6. TWAHA MOHAMED NAGGI

7. KIRTWAS IMANI ATHMAN

8. BAKARI MOHAMED ATHMAN

9. AHMED MOHAMED ASSAD

10. ALI HAMZA BAKRALE

11. HASSAN MOHAMED SUFUAN

12. ALI MOHAMED ASSAD

13. NASSIR MOHAMED ASSAD

14. ABUOD MOHAMED HASSAN

15. ALI ATHMAN MOHAMED...........................PLAINTIFFS/APPLICANTS

=VERSUS=

1. THE HON. ATTORNEY GENERAL

2. NATIONAL LAND COMMISSION

3. RUKIA BWARALI MOHAMED

4. SALMA MOHAMED BWANDAMIA

5. BAKARI MOHAMED ABDULRAHMAN......DEFENDANTS/RESPONDENTS

R U L I N G

What is before me is the Application by the Plaintiffs' dated 31st March, 2015 in which they are seeking for the following orders.

(a) THAT this Honourable Court be pleased to issue orders of injunction restraining the 3rd and 4th Defendants/Respondents their servants, agents or any person or acting under them from trespassing upon, selling, mortgaging, transferring or in any other way from dealing with the  Plaintiffs/Applicants parcel of land, previously unregistered but now registered as portion number LAMU/PATE SCHEME 897 and 898 pending the hearing and determination of this suit.

(b)     That the costs of this application be in the cause.

The Application is premised on the grounds that the Applicants are the rightful owners of the previously unregistered parcel of land, now registered as Lamu/Pate Scheme/897 and 898 and that the Defendants fraudulently caused the land to be registered in the names of the 3rd and 4th Defendants.

The Plaintiffs'/Applicants' case:

According to the Affidavit of the 4th Defendant, the Plaintiffs inherited the suit properties from their forefathers; that in the year 2012, the government established a settlement scheme in Pate by granting to the inhabitants titles and that a committee was established for that purpose.

It is the deposition of the 4th Plaintiff that they appointed the 5th Defendant to be the chairman of the committee; that the 5th Defendant fraudulently caused the two properties registered in the name of the 3rd and 4th Defendants and that the 5th Defendant's actions are a breach of trust bestowed upon him by the government and the Plaintiffs.

It is the Plaintiffs' case that the 3rd and 4th Defendants have never been on the suit premises and that they now intend to evict the Plaintiffs.

According to the Plaintiffs, the 3rd Defendant has filed a suit against four of the Plaintiffs in  Lamu PMCC NO. 2 of 2014 for eviction orders.

The Defendants'/Respondents' case:

The 5th Defendant deponed that he was chosen by the residents as the chairman of the land committee which was to identify genuine land owners; that the Plaintiffs were allocated other parcels of land and that the decision of the land committee was by the consent of the all the members of the committee.

According to the 5th Defendant, the suit properties have never belonged to the Plaintiffs or their families and that the land has never been cultivated.

It is the Respondents' case that the current suit is a red herring meant to mix up issues and derail the legal process and more particularly Lamu PMCC No. 2 of 2014.

The Plaintiffs and the Defendants' advocates filed their respective submissions which I have considered.

Analysis and findings:

Before I consider the Application on merit, I need to decide as to whether this suit is properly before this court in view of the Plaintiffs' admission that the 3rd Defendant has sued four of the Plaintiffs in Lamu PMCC No. 2 of 2014 over the same suit property.

It is trite law that proceedings in respect to the same suit property and involving the same parties cannot proceed simultaneously in the lower court and in this court.

If indeed the 3rd Defendant has sued some of the Plaintiffs in Lamu PMCC No. 2 of 2014, the proper thing for the Plaintiffs who are not parties to that suit was to seek to be enjoined in that suit.

To the extend that some of the Plaintiffs herein are Defendants in  Lamu PMCC No. 2 of 2014 litigating over the same suit property, and considering that the orders of this court are binding on the lower court, it will be prejudicial to the parties in PMCC No. 2 of 2014 for this court to make a determination on the issues raised in the current Application.

Indeed, it will be absurd for this court to proceed with this matter independently while well aware that the findings of the lower court in Lamu PMCC No. 2 of 2014 might find their way to this court by way of appeal.

In the circumstances, I find and hold that it is unprocedural for the Plaintiffs to have filed this suit instead of filing a counter-claim in the lower court or staying the lower court matter first before filing the current suit.

For those reasons, I strike out the Application dated 31st March 2015 with costs.

Dated and delivered in Malindi this  25th day of   September2015.

O. A. Angote

Judge