Thomas Ratemo, Paul Ondigi Ongeri & Charles Morira Ongeri v Zachariah Isaboke Nyaata & Augustino Obaigwa Nyakundi [2021] KEELC 4486 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISII

ELC CASE NO. 95 OF 2004

THOMAS RATEMO ………………………………………..………1ST PLAINITFF

PAUL ONDIGI ONGERI……………………………………..……2ND PLAINTIFF

CHARLES MORIRA ONGERI……………………………………3RD PLAINTIFF

VERSUS

ZACHARIAH ISABOKE NYAATA……………………………1ST DEFENDANT

AUGUSTINO OBAIGWA NYAKUNDI………………………2ND DEFENDANT

RULING

INTRODUCTION

1. By a Notice of Motion dated 30th October 2019 the Applicant seeks the following orders:

a)  That this Honourable Court be pleased to order for eviction of the Plaintiffs by themselves, their agents, servants and/or persons acting on their behalf from Land Parcel No. WEST KITUTU/BOGUSERO/2940.

b)  That the costs of this Application be provided for.

2. The Application is based on the grounds stated on the face of the Notice of Motion and the Supporting Affidavit of Augustino Obaigwa Nyakundi, the 2nd Defendant/Applicant sworn on the 30th day of October 2019. In the said Affidavit he depones that he is the registered owner of Land Parcel No. WEST KITUTU/BOGUSERO/2940. The Plaintiffs had filed a suit claiming the suit property by way of adverse possession. The said suit was withdrawn by the Plaintiffs on 29. 1.2015. Following the said withdrawal, the Plaintiffs were evicted from the suit property by Elimonyaco Auctioneers on 13. 4.2018, but the Plaintiffs have since gone back to the land. He therefore seeks an order of eviction against the Plaintiffs.

3. The Application is opposed by the Plaintiffs through a Replying Affidavit of Paul Ondigi Ongeri, the 2nd Plaintiff herein in which he depones that the Defendant never filed any counterclaim and no order of eviction was issued against them. He therefore prays that the Application be dismissed with costs.

4. The Application was canvassed by way of written submissions and both parties filed their submissions.

ISSUES FOR DETERMINATION

5. The central issue for determination is whether the Applicants are entitled to an eviction order against the Plaintiffs/Respondents.

ANALYSIS AND DETERMINATION

6. It is not in dispute that the Plaintiffs instituted a suit by way of Originating Summons seeking to be declared as the absolute owners of land parcel number WEST KITUTU/BOGUSERO/1566 which their father had purchased from the late AMWOMA MARIETA in 1972. The said land parcel was subsequently sub-divided and transferred to the 2nd Defendant. The Plaintiffs withdrew the suit against the Defendants on 29. 1.2015.

7. It is also not in dispute that the Plaintiffs were evicted from the suit property pursuant to a warrant to give vacant possession issued by the Deputy Registrar on 24th October 2003. However, in his Ruling dated 29. 10. 2004 Justice Kaburu Bauni made the following observations:

“Though the parties never annexed pleadings and proceeding in HC Misc Application No.12 of 1999 the Court has on its own called for the file and gone through it. In that suit Joachim Orero had through an Origination Summons sued the Respondent and two others over the same land. One of the prayers was declaration that his late father’s estate had acquired a right to that land by way of adverse possession. He also sought to have the transfer of the said land to the Respondent who was the 3rd Defendant by the other two as null and void. The Defendants filed a Defence and their only prayer was to have the suit dismissed. There was no Counterclaim by the Defendants to have the Applicant and other beneficiaries of their father’s estate evicted from the land. There was no prayer that he be declared the absolute owner. Thereafter an Application was filed by the Defendants to have the suit dismissed. The Application proceeded ex-parte. The Application was allowed and the Originating Summons was struck out on 14. 2.02. It is after that that the Deputy Registrar issued warrants to give possession of the land. The said warrant was purported to have been made under order 21 Rule 30(1) C.P.R. That rule reads:

“Where a decree is for delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf and if necessary by removing any person bound by the decree who refuses to vacate”.

The court further observed that:

“There was no decree issued in Misc Application No. 13 of 1999 directing the Applicant in that suit who is a brother of the Applicants in the instant suit to deliver the suit land to the Defendants or any other person. The court only struck out the Originating Summons as prayed in the Application and Defence. The Defendant had not prayed that the Plaintiff in that suit do deliver vacant possession to him. The warrant to give possession of the land issued by the Deputy Registrar on 24th October 2003 was therefore wrong as there was no such order. There was never any application or prayer that the plaintiff in that suit do deliver possession of the suit land” (emphasis supplied).

8. From the foregoing Ruling by Bauni J, it is clear that the order for eviction sought by the Applicants cannot be granted as no such order was issued by the court and the previous eviction carried out by Elimonyaco Auctioneers on 13. 4.2018 was erroneous. That being the position, the order of eviction sought by the Applicants cannot be granted. In the premises, Application lacks merit and the same is dismissed with costs to the Respondents.

Dated, signed and delivered at Kisii this 27th day of January 2021.

J.M ONYANGO

JUDGE.