Richard Satia & Partners & Jestimore Simwenyi v Samson Sichangi & Endebes Farmers Investment Co. Ltd [2018] KEELC 1051 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET

E & L CASE NO. 42 OF 2015

RICHARD SATIA & PARTNERS

JESTIMORE SIMWENYI....................................................................PLAINTIFF

VERSUS

SAMSON SICHANGI........................................................................DEFENDANT

AND

ENDEBES FARMERS INVESTMENT CO. LTD...........INTERESTED PARTY

RULING

The application is dated 6. 12. 2016.  The applicant prays for a temporary order of stay of execution, restraining the plaintiff/respondent’s agents, assigns and/or servants and/or any other person acting under their instructions from further evicting, destroying, demolishing, threatening to further eviction and/or in any other manner interfering with the interested party quite possession of all that parcel of land known as L.R. No. 5335/24 situated at Endebess area, Trans Nzoia County pending the hearing and determination of the application.

The application is supported by the affidavit of James Tune who states that on 26. 03. 2002, the honourable court issued an order of eviction directing that the defendant and his family be evicted from parcel No. L. R. No. 5335/24 situated at Endebess in Trans-Nzoia County.

That the said orders were then amended on 23rd July, 2014 and that the plaintiffs/respondents are now preparing to use the said orders to evict the members of Endebess Farmers Investment Co. Ltd yet the said orders have been directed to defendant herein who is now deceased. That the eviction orders do not affect the members of Endebess Investment Company Limited.

That the respondents then filed for Judicial Review at the High Court of Kenya at Eldoret and the Judicial Review dismissed.  That the applicants have not in any way substituted the deceased defendant. That the survey work intended to be done herein has not been done.

The alleged orders are being executed by persons who are not the plaintiffs as the plaintiffs have already passed on. That in real sense, the suit herein has abated.

Wilson Walunywa Simwenyi, the Legal Representative of the plaintiff/respondent states that the interested party’s application is frivolous, vexatious, devoid of any merit and an abuse of the court process. That the interested party have no locus standi to seek for the instant orders as they have not been properly enjoined in this suit hence they are busy bodies. The interested party/applicant have no legal or equitable interest on the subject property to as they have not exhibited any documentary evidence to show otherwise.

That the matter is res judicata as the same issues have been ventilated and final orders issued in this cause especially Nakuru Civil Appeal No. 164 of 1995, Kitale Hccc (Environment & Land) No. 139 of 2014 including several applications in this case which all have been dismissed (copy of rulings).

The interested party (Endebes Farmers Investment Company Limited) were the plaintiffs in Kitale ELC No. 139 of 2014 which sought similar orders, however the same were dismissed with costs. That he has been legally informed by his Advocate on record which information he verily believes to be true that the interested party are using weird gimmicks to deprive the respondents from enjoying the fruits of the lawful judgment entered in their favour way back in 1991.

The interested party are aware of the eviction orders issued herein and have never appealed against the same and therefore the instant orders sought are made in bad faith, tainted with malice and malafides.

The deponent states that he has further been informed by his advocate on record that if there is resistance or obstruction of the eviction orders validity issued by this honourable court and the same is being occasioned without any just cause then the interested party should be punished by this honourable court. That in light of the foregoing, he strongly opposes the application before court and that the orders should not be granted.

I have considered the application, supporting affidavit, replying affidavit and the submissions on record and do find that the application is highly irregular as the applicant is not party to the concluded suit.  He has so to speak, sneaked into the proceedings and sought restraining order.  He should have made an application under Order 1, Rule 10 to be enjoined in the suit.

Moreover, there is no evidence that the interested party is a legal entity.  The said interested party has not annexed a certificate of incorporation and the current returns.  It is not clear who James Tune is in relation to the company. The application is filed more than 14 years after judgment. No explanation is given for the delay. The applicant seeks the discretion of the court to grant orders of injunction however there is delay as the plaintiff already have judgment and the legal adage that delay defeats equity applies. There exists no suit to enable the court to grant a temporary injunction. The upshot of the above is that the application lacks basis and is dismissed with costs.

Dated and delivered at Eldoret this 23rd day of October, 2018.

A.  OMBWAYO

JUDGE