Wilson Nato v Francis Simiyu Wekesa & Joseph Namasaka Nato [2014] KEHC 5340 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENT  CASE NO. 3 of 2013

WILSON NATO.........................……………............……… PLAINTIFF

VERSUS

FRANCIS SIMIYU WEKESA..........…..…DEFENDANT/RESPONDENT

AND

JOSEPH NAMASAKA NATO …......................................APPLICANT

RULING

1.   The application up for ruling is the one dated 9th September 2010 brought by the Applicant JOSEPH NAMASAKA NATO. It seeks the following orders;

a)       Reinstatement of the suit.

b)   Plaintiff herein Wilson Nato now deceased be substituted and be replaced by Joseph Namasaka Nato the applicant herein.

c).  That the L.R No. Bungoma/Kabisi/323 registered in the names of the defendant is nullified, deregistered and or    revoked.

d)   That the L/.R.  No. Bungoma/Kabisi/323 be registered   in   the names of the applicant Joseph Namasaka Nato.

e).  Costs be provided for.

2.   The application initially had been granted as presented on 7th March 2012 by Chitembwe J. while the matter was still a    Kakamega High Court file.  Subsequently the Defendant filed an application dated 23. 7.2012 seeking to set aside the orders of    the court of 7th March 2012.  The Application dated 23. 7.2012 was allowed in terms of prayer (b) on 5th December 2012 again     by Chitembwe J.

3.   Thereafter this file was transferred to Bungoma High Court for hearing and determination. In the confusion when the application dated 9th September 2010 came for hearing, I was under the mistaken belief that this application had already been   dispensed with wholly.  I made a ruling that there was nothing more for me to determine.  Mr. Ingotsi for the Defendant has since clarified this.  I have perused the record a second time and  confirmed that the orders allowing the application dated 9th  September 2010 was already set aside on 5th December 2012.

4.   The present application (dated 9. 9.2010) sought to reinstate the  suit, substitute the deceased plaintiff among other prayers.The application is opposed and the Defendant submitted that prayer (c) & (d) cannot be granted at an application stage.  The  Defendant submitted that prayer (b) cannot   be granted as the suit had abated on 11th February 1997.  That no reason had  been given why the suit was not prosecuted between 1990 – 2001. He urged the court to disallow the application.

5.   The application had earlier been granted.  To unseat the Applicant completely from the seat of justice he had earlier   tasted will is quite harsh in my view.  The other issue raised in  opposition  by the defendant is that the previous owner of the  suit property was the settlement trust fund in terms of counting time for adverse possession.  In my mind that is a     matter that can only be determined during the hearing of the main suit and not in the interlocutory proceedings.

6.   The Applicant also submitted that previously they were  represented by Shitsama & Co. advocates hence he may not be able to explain why the suit took long before it was prosecuted. Although this suit was dismissed for want of prosecution in 2001 and no valid explanation has been offered. However given the applicant has moved the court, it is only fair and just  that he is given a chance to be heard on merit of his suit. Consequently, I grant prayer (a) & (b) of the application. Prayer (c) & (d) are disallowed as the issues raised can only be ventilated during the hearing of the suit and not vide  interlocutory mode.  The costs of the application are awarded to the Defendant.

DATED, SIGNED and DELIVERED this 13th  day of  May   2014

A. OMOLLO

JUDGE.