Robert Wafula Wanyama (Suing as the personal representative of the estate of George Wanyama Wepukhulu (Deceased) v Joseph Mwasame, Alfred Nabiswa Mwasame, Robinson Mwasame & Jackson Kundu [2017] KEHC 2791 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

CIVIL SUIT NO. 43 OF 2006.

ROBERT WAFULA WANYAMA

(Suing as the personal representative of the estate of

GEORGE WANYAMA WEPUKHULU (DECEASED)…………………PLAINTIFF

VERSUS.

1. JOSEPH MWASAME )

2. ALFRED NABISWA MWASAME)

3. ROBINSON MWASAME )

4. JACKSON KUNDU )…………………..DEFENDANTS

RULING.

[1].The applicant brings this application under Sec. 3, 3A and 7 of the Civil Procedure Act and Order 2 rule 15(1) (d) of the Civil Procedure Rules 2010.  He prays that this suit be struck out for being an abuse of the process of court.  He relies on the ground that the claim is resjudicatta pursuant to the Webuye Senior Resident Magistrates Court MISC Application No. 27 of 1998 further that the applicant has filed Bungoma High Court MISC No. 486 of 2012 in respect of parcel Number Bokoli/Bokoli/1924.  He avers that a Court decree cannot be challenged by another suit.  It is argued that the suit is an abuse of the process of court.

[2].The application is opposed by the plaintiffs who filed grounds of opposition against this application.  It is argued for the respondent that the alleged P & A in the High Court was not annexed nor shown to Court.  Further that the Plaintiffs brought this case for a declaration that the orders of the tribunal that made orders in relation to title to land were null and void and that this court has such jurisdiction.That there is no good reason why this case should be struck out.  It was therefore argued that the Court should not allow reliance on technicalities.  That if the application is allowed the plaintiffs will be locked out for no reason.

[3].I have carefully perused the plaint.  It reveals that the respondents were registered as owners pursuant to Bokoli lands dispute Tribunal No. 3 of 1998.  The deceased George Wanyama Wepukhulu the then registered owner of Bokoli/Bokoli/718 comprising of 29. 54 Ha filed an appeal to the Western Provincial Land Appeals Tribunal and before the appeal could be heard and determined, he died on 12/9/1999.  That thereafter the said Western Province Appeals Tribunal proceeded to hear the appeal and dismissed the same.That the orders of the Tribunal were adopted as orders of the court vide Webuye Miscellaneous Case No. 27 of 1998.  This was one year after the death of the registered owner George Wanyama Wepukhulu.  It is contended in the Plaint that the suit had abated.  It is also stated that the Subdivision of the suit land was actuated by fraud.  Particulars of fraud are set out in the Plaint.  There is also a prayer that the removing of the vesting order and removal of the restriction was null and void.

[4].These issues to the best of my knowledge have not been canvassed in court.  They are not resjudicatta.  The Plaintiffs cannot be shut out from leading evidence in Court on the same.  The respondents will no doubt have their say on those allegations.

[5].This application has no merit.  I dismiss it with costs.  The suit shall proceed to full hearing on merits.

Ruling read in Open Court in presence of the Counsels.

Dated at Bungoma this 3rdday of October, 2017.

S. MUKUNYA

JUDGE

In the presence of:

Court Assistants:  Joy/Chemuai

Madam Wakoli – Holding brief for Bw’ Onchiri for the defendant

Mr. Murunga for Kweyu for Plaintiff