Samuel Wanjohi Kinyanjui, Njoroge Kinyanjui, Samuel Gathee Mwangi, Isaac Karanja & Jackson Njoroge v John Ngure Gaiko [2021] KEHC 4256 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

MISCELLANEOUS APPLICATION NO. 333 of 2019

SAMUEL WANJOHI KINYANJUI.....................................1ST APPLICANT

NJOROGE KINYANJUI....................................................2ND APPLICANT

SAMUEL GATHEE MWANGI.............................................3RD APPLICANT

ISAAC KARANJA.............................................................4TH APPLICANT

JACKSON NJOROGE......................................................5TH APPLICANT

VERSUS

JOHN NGURE GAIKO..........................................................RESPONDENT

RULING

1. The undisputed background to the motion dated 27th September, 2019, as can be gleaned from the sparse affidavit sworn by Njoroge Kinyanjui (2nd Applicant) and the replying affidavit of John Ngure Gaiko (the Respondent) is as follows. The Respondent had sued the 2nd Applicant and Samuel Wanjohi Kinyanjui (1st Applicant) initially in Thika CMCC No. 841 of 2013.  The suit related to the land parcel described as LR No. Ruiru/Ruiru East Block 2/3439(hereafter the suit property).

2.  Subsequently the plaint was amended to include Samuel Gathee Mwangi, Isaac Karanja and Jackson Njoroge (the 3rd to 5th Applicants, respectively) as the 3rd to 5th Defendants.  The matter proceeded exparte on 31st October, 2018 and judgment was delivered on 5th December 2018 requiring the Defendants to vacate the suit property.

3. A subsequent application to have the judgment set aside was refused and the Applicants filed the present application seeking leave to file an appeal out of time.  The court having now reviewed the record of the parties’ affidavits and annexures has concluded that at the heart of the dispute in the Lower Court suit was the ownership of the suit property, and that the application to appeal out of time ought to have been filed in the Environment and Land Court (ELC) at Thika.  In the circumstances, this court cannot proceed to determine the application dated 27th September 2019 for want of jurisdiction.

4. The matter is accordingly transferred to the ELC Thika for hearing and determination. Proceedings taken before me on 17th June, 2020 when the application was argued are hereby set aside suo motu.

DELIVERED AND SIGNED ELECTRONICALLY ON THIS 29TH DAY OF JULY 2021

C. MEOLI

JUDGE

In the presence of:

Ms Kanja for the Respondent

N/A for the Applicants

Kevin: Court Assistant