William Ogolla Opiyo v Philip Masinde [2015] KEHC 4594 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA..

ELC. NO. 219 OF 2014.

WILLIAM  OGOLLA OPIYO……………………………………………......APPLICANT

=VERSUS=

PHILIP MASINDE ……………………………………………………….RESPONDENT.

R U L I N G.

PHILIP MASINDE,the Applicant through M/S. J.V. Juma  and company advocate  filed the application dated 5th March, 2015 praying  for the striking out of the originating summons filed by William  Ogolla  Opiyo, the  Respondent.  The application  is based on two grounds on  the application that  it is res judicata in view of the decision  in Busia CMC Land case No. 80 of 2009 and for being  defective and incompetent. The Application  is supported  by the Applicant’s  affidavit  sworn on 5th March, 2015 to which he annexed  copies of eviction order in Busia CMC Land case No. 80 of 2009 against the Respondent dated 6th May, 2013 and copy of Ad Litem grant issued  to him in Busia H.C. Misc. Cause No. 152 of 2014.

The application is opposed by the Respondent who filed his replying affidavit sworn  on 14th April, 2015 drawn  by his advocates,  M/S. Ouma – Okutta Associates.  The Respondent had on 19th March, 2015 been directed to file and serve the replying affidavit within seven days. The Respondent  did not comply with the court order  and did not seek enlargement of time before filing the replying affidavit on 14th April, 2015 which was about  26 days  from the orders of 19th March, 2015.

When the application came up for hearing of the 20th April, 2015, Mr.  Juma and Okutta Advocates presented their  submissions.

The court has carefully considered the grounds on the application, submissions by counsel  and the supporting affidavit.

That one  Robert Masinde  said to be a brother to the Applicant herein,  had obtained  eviction orders dated 6th May, 2013 in Busia  CMC Land case No. 80 of 2009 against  William Opiyo Ogolla (Respondent herein) and another in respect of Samia/Wakhungu-Odiato/18, which  is the suit land herein.

That eviction  order addressed to the O.C.S, Funyula  Police  station required  that   the Respondent herein, and one Isaac Ogutu keeps off the suit land as ordered on 11th November, 2010. There has been no successful  appeal or review application over the said order and  the issues therein had been decided with finality as between the parties.

That  the said Robert Masinde  passed away on 13th September, 2013 and the Applicant herein  obtained grant of letters of administration Ad Litem on 15th December, 2014, under section 67(1) of the Law of Succession Act.  The grant is limited to the purpose of representing the deceased’s  estate in Busia CMC. Land  case No. 80 of 2009 which involves Land parcel Samia/Wakhungu/Odiado/18.

That when the Respondent  filed the originating  summons  dated 19th December, 2014 claiming three acres of land parcel Samia/Wakhungu-Odiado/18, he named the Applicant herein as the Respondent.  The copy  of the register  filed with the originating summons shows the registered proprietors  of the suit land under entry number 5 are  Robert  Masinde  and Philip  Masinde. Robert  Masinde is now deceased as shown in  (3) above and  the Applicant  was therefore correctly enjoined as the Respondent in the originating summons. The Respondent  to the originating  summons had every right in law  to move the court as he did in the Notice  of Motion  dated 5th March, 2015 as the originating summons concerns the same subject matter as Busia CMC. Land case o. 80 of 2009 for which he has obtained a grant Ad Litem.

That by the time the originating summons dated 19th December, 2014 were filed, the  occupation of the suit land by William Ogolla Opiyo  (Respondent) had  been interrupted or terminated through the court order of 11th November, 2010  and eviction order of 6th May, 2013  in Busia CMC. Land case No.80 of 2009. The Respondent did not disclose the existence of that case in the pleadings filed herein.

That having found as in (5) above, it follows that the Respondent’ soccupation or possession of the suit land  of the period before the orders in Busia CMC. Land case No. 80 of 2009 cannot be counted in his favour.  Taking it that the Respondent took fresh possession of the suit land after the orders issued in Busia CMC. Land case No. 80 of 2009, then the time would  start running after the re-entry. No  specific  date has been given in the originating summons  post  the  orders of Busia CMC. Land Case No.  80 of 2009. In any case a period of twelve (12) years has not passed since  the eviction orders in that case were issued to enable  the Respondent lodge a claim over  the suit land based on adverse possession.

That having found as above, the court finds that the suit commenced  through the originating summons dated 19th  December, 2014 is an abuse of court process, and meant  to delay the execution of the orders issued in Busia CMC. Land Case No. 80 of 2009. The application dated 5th March, 2015 is therefore  allowed and the following orders issued;

The originating summons dated 19th November, 2014 are hereby  struck out and suit dismissed.

The Respondent to pay the Applicant the costs.

It is so ordered.

S.M. KIBUNJA

JUDGE.

DATED AND DELIVERED ON 28TH DAY OF MAY, 2015.

IN THE PRESENCE OF;

APPLICANT……ABSENT………………………………………………………………………

RESPONDENT……ABSENT……………………………………………………………………

COUNSEL……MR. JUMBA FOR DEFENDANT/APPLICANT.……………………………..

JUDGE.