Nture Nzoka, Mutisya Mwinzi, Mwangangi Kinthu, Titus Nyamu, Mwandikwa Bara & Joseph Nkunyu v Iguna Kirii, Kyalo Iguna & John Mulwa Muthaa [2017] KEELC 2548 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO.128 OF 2016

NTURE NZOKA..........................................................1ST PLAINTIFF

MUTISYA MWINZI....................................................2ND PLAINTIFF

MWANGANGI KINTHU.............................................3RD PLAINTIFF

TITUS NYAMU...........................................................4TH PLAINTIFF

MWANDIKWA BARA................................................5TH PLAINTIFF

JOSEPH NKUNYU....................................................6TH PLAINTIFF

VERSUS

IGUNA KIRII............................................................1ST DEFENDANT

KYALO IGUNA.......................................................2ND DEFENDANT

JOHN MULWA MUTHAA.....................................3RD DEFENDANT

RULING

1. In the Notice of Motion dated 26th September, 2016, the Plaintiffs are seeking for these orders:

a.That an injunction barring and restraining the Respondents, their agents, servants or employees from trespassing into, entering, putting up building, undertaking any works or in any other way whatsoever and howsoever interfering with the Applicants unsurveyed land pending the hearing and determination of the lower court suit.

b.That the costs of this Application be provided for by the Respondents.

2. The grounds on which the Application is premised on are that the Applicants are the owners of the suit land; that the Respondents have trespassed on the suit land and that the Respondents have been cutting down trees and putting up buildings on the suit land.

3. According to the Affidavit of the 6th Plaintiff, the 1st Respondent sued him in Kyuso Law Court SRMCC No. 32 of 2015 claiming that he is the owner of the suit land.

4. The Plaintiffs deponed that on 14th March, 2015, their clan discussed the dispute and that the clan resolved that the suit land belongs to the 2nd Plaintiff’s grandfather.

5. In response, the 1st Defendant deponed that there is an existing suit between the parties herein in the lower court; that he is the legal owner of the suit land; that it is the Plaintiffs who trespassed on the suit land on 19th August, 2015 and that it is because of the said acts of trespass that he filed the matter that is pending in the lower court.

6. The 1st Defendant deponed that in Kyuso SRMCC No. 32 of 2015, they filed an Application seeking for restraining orders which Application is still pending.

7. The parties filed brief submissions which I have considered.

8. It is not in dispute that the Plaintiffs herein were sued by the 1st Defendant in Kyuso SRMCC No. 32 of 2015.

9. The pleadings that have been annexed on the Defendants’ Affidavit shows that the suit property is the same in the two matters.

10. The Defendants have also annexed the Application that they filed in the lower court seeking for injunctive orders as against the Plaintiffs herein.

11. Indeed, the lower court granted to the Defendants herein injunctive orders restraining the Plaintiffs from interfering with the suit land.

12. The Plaintiffs, having been restrained from trespassing, fencing, sub-dividing and clearing bushes on the suit land want this court to issue orders which will in effect conflict with the orders of the lower court.  That is unacceptable.

13. Considering that there is already a pending suit in the lower court involving the same suit property and parties, I find and hold that the filing of this suit by the Plaintiffs (who are Defendants in Kyuso SRMCC No. 32 of 2015) is an abuse of the court process.

14. In the circumstances, I dismiss the Plaintiffs’ Application dated 26th September, 2016 with costs.

15. I also strike out the suit with costs for being sub-judice Kyuso SRMCC No. 32 of 2015.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30TH DAY OF JUNE, 2017.

O.A. ANGOTE

JUDGE