Stephen Nabangi v Moses Mulati & Elvis Barasa [2013] KEHC 2945 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

MISC. APPLICAITON NO. 29 OF 2013

STEPHEN NABANGI .........................................................APPLICANT

VERSUS

MOSES MULATI..................…................................... RESPONDENT

ELVIS BARASA …...............................................AGGRIEVED PARTY

RULING

By a notice of motion dated 27th March 2013 brought under   Section 1A, 1B, 3, 3A of the Civil procedure  Act and Order 45 of the  Rules, the aggrieved party seeks for ;

(a).    Pending hearing and determination of this application Nzoia Sugar  Co. Ltd.   be ordered not to  release cane  proceeds in respect of  field nos. 45107107083 and 451008307081 to  the respondent.

(b).    The honourable  court be pleased to review and/or set aside  its orders herein dated 30th January 2013.

(c).    That  consequently this court be pleased to order that the cane proceeds be released to the aggrieved party herein

(d).    costs of the application be provided for.

The application is premised on five grounds on the face of  inter alia that ;

The aggrieved  party is aggrieved.

There is an error apparent on the record.

It was also supported by the affidavit of Elvis Barasa and Hillary Musoko Waswa.  While submitting in support of this application, Mr. Ocharo pointed out that the applicant – Mr. Stephen Nabayi did not file any documents to challenge the present application.  He was dully served and as the respondent put it to court, he gave him transport to come but he does not know why he did not come  to court.

The application  thus opposed only by the respondent – Mr. Moses Mulati the applicant and the respondent commenced this suit by way of miscellaneous civil application on 7th January 2013.  The order sought was to have caveat placed on  field numbers  45107107083 and 451008307081 at Nzoia Sugar Co. Ltd. by the respondent removed.  A3 submitted  by Mr. Ocharo, no relationship is explained between the applicant and the respondent or why he sued in the first place.  Even in his supporting affidavit to that application, he did not explain why he wanted the caveat removed.

They entered  a consent on 30th January 2013, which consent was endorsed  by the Deputy Registrar on the same date.

That consent removed the caveat and added another order which was not prayed for in the application to  wit “2.  That cane proceeds  in respect  of the said two field numbers be and are released to the respondent when the same become due”.  It is this  limb of the order which aggrieved the  aggrieved party to move  this court.  He leased a portion of the land  indicated in the field numbers from Hillary Waswa who is a brother to the respondent in 2007.  The lease  entitled him to three harvests.  The said  Hillary has  also sworn an affidavit to confirm this fact.

The respondent in opposing this application swore a replying affidavit. He averred that the said Hillary did not have capacity to lease the land as the registered  owner who is their father died in 1993 and the action of his brother amounted to  inter- meddling with estate of a deceased.  He quoted Section 45 of the Law of Succession Act.  He said there  is an order restraining activities on this  land although he did not  show the court that order.  He  further argued that the aggrieved party has harvested thrice and that the contract with Nzoia shows him as the owner of the land.

What came out when the parties appeared before  is that the cane belonged to the aggrieved.  This was a fact conceded from the court by both the applicant and the respondent.

Secondly Limb 2 of the order was not prayed for in the application. It was an obvious error on the record for the consent to introduce a new prayer that was  included earlier.

The applicant merely stated in his grounds on the face of the application that  “the said caveat needs to be  removed to enable the parties  concerned access the cane proceeds to enable them  basic needs.”  such prayers must be comprised in the body of the application for it to be valid.

Lastly this court also note the affidavit in  support of that application was sworn by one Benedict Nyongesa Awoyi. The respondent  has not told this court who  he is.  The applicant according to the views of this court is the one inter- meddling with  the estate of the deceased.  Instead of using the role of  trust bestowed on him as  an administrator, he is merely abusing that role by  introducing people who are not direct beneficiaries  to the estate and disregarding the rights of other beneficiaries such as Hillary.

The application by the aggrieved party is therefore merited  as this court must stop the respondent in  his tracks to benefit from the sweat of the  others while abusing the court process.  The application is allowed in  terms of prayer (c), (d), (e) & (f).

RULING SIGNED, DELIVERED AND READ in open court this    5th day of June  2013.

A. OMOLLO

JUDGE.