Moses Banda Wafula Jimmy Shiundu Chitere [2021] KEELC 4431 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC CASE NO. 21 OF 2013

(FORMERLY BUNGOMA CMCC No. 123 of 2001)

MOSES BANDA WAFULA............................................................. PLAINTIFF

VERSUS

JIMMY SHIUNDU CHITERE.....................................................DEFENDANT

R U L I N G

What is coming up before me is the application dated 18th November 2019.  In the application, the plaintiff/Applicant seeks the following two (2) remedies: -

1. Spent

2. Order dated 17th September 2018 dismissing this suit be set aside and the suit be reinstated to hearing.

The application is opposed.  When the application was placed before me on 21st October 2020, it was agreed that it be canvassed by way of written submissions.  Those submissions were subsequently filed both by MR KHAKULA instructed by the firm of J. S. KHAKULA & COMPANY ADVOCATES for the plaintiff/Applicant and by MR KWEYU instructed by the firm of E. O. KWEYU & COMPANY ADVOCATES for the defendant/Respondent.

Having perused this file, I notice that there are no pleadings herein.  It would appear that BUNGOMA SPM CIVIL CASE FILE No 123 of 2001 was transferred to this Court by an order issued by HON M. O. WAMBANI – SENIOR PRINCIPAL MAGISTRATEon 23rd November 2012.  That file was subsequently placed inside this file.  The order issued on 23rd November 2012 was out of jurisdiction.  I notice that the parties herein had on 30th November 2016 entered a consent referring the dispute relating to land parcel NO KIMILILI/ KIMILILI/924 for determination by the KIMILILI SUB – COUNTY COMMISSIONER.  In the absence of pleadings, there could not have been any dispute to refer to the commissioner on 30th November 2016 nor any suit to dismiss on 17th September 2018.  Those orders were issued in error and are hereby vacated.

In the absence of pleadings, the application dated 18th November 2019 has no foundation. It is struck out.

What probably caused this confusion was the placing in this file of BUNGOMA SPMC CIVIL CASE FILE No 123 of 2001 pursuant to the orders of 23rd November 2012 by HON M. O. WAMBANI – SENIOR PRINCIPAL MAGISTRATE.

I therefore make the following orders: -

1. The consent order recorded by the parties herein on 30th November 2016 and the order issued on 17th September 2018 are hereby vacated and set aside as there was no suit to refer to arbitration by the commissioner nor to dismiss.

2. BUNGOMA SPMCC No 123 of 2001 was improperly transferred to this Court vide an order dated 23rd November 2012.  The file be returned to that Court for mention on 11th February 2021 for purposes of taking directions as to hearing.

3. The application dated 18th November 2019 as well as the Bill of Costs filed by the defendant on 3rd May 2019 have no foundation and are hereby struck out.

4. This file be marked closed.

Boaz N. Olao.

J U D G E

11th February 2021.

Ruling dated, signed and delivered at BUNGOMA this 11th day of February 2021 by way of electronic mail in keeping with the COVID – 19 pandemic guidelines.

Boaz N. Olao.

J U D G E

11th February 2021.