Barisa v Morawa & another; County Government of Tana River (Interested Party) (Environment & Land Case 110 of 2017) [2020] KEELC 3988 (KLR) (23 January 2020) (Ruling)
Omar Maro Barisa v Muramba Bakari Omar & another; County Government of Tana River (Interested Party) [2020] eKLR
Neutral citation:
[2020] KEELC 3988 (KLR)
Republic of Kenya
Environment & Land Case 110 of 2017
JO Olola, J
January 23, 2020
Between
Omar Maro Barisa
Plaintiff
and
Husseiin Morawa
1st Defendant
Muramba Bakari Omar
2nd Defendant
and
County Government of Tana River
Interested Party
Ruling
1.By this Notice of Motion dated and filed herein on 8th October 2018, the County Government of Tana River seeks to be enjoined in these proceedings as an Interested Party. The application which is supported by an Affidavit sworn by its Director Legal Services Isaiah Ndisi Munje is premised on the grounds that:-(a)The suit property is land communally owned by the residents of Tana River County;(b)Under the Constitution of Kenya 2010, and the Community Land Act 2013, such land is vested with and in the Applicant to hold in trust, for the greater and wider interests of the community;(c)The Applicant has visited the locus quo, understands the historical background of the dispute between the parties and has been arbitrating the dispute between the parties with a view of having an amicable settlement;(d)In the process the Applicant has obtained relevant material that will assist this Court for the effective and just determination of the matter;(e)The Applicant is by virtue of the foregoing and by virtue of the provisions of the Community Land Act and Article 63 of the Constitution a necessary Party for the effective and just determination of the issues before the Court; and(f)It is in the interest of administration of justice that the prayers sought herein be granted.
2.The application is opposed. In a Replying Affidavit sworn and filed herein on 10th December 2018, the Plaintiff Omar Maro Barisa avers that the application is full of falsehoods. He asserts that the dispute herein relates to land that he owns privately and that it is not community or clan land as claimed.
3.The Plaintiff further avers that he came to Court due to the fact that the Defendants were trespassing on his parcel of land which land he had occupied for over 67 years. The Plaintiff further asserts that the Defendants are trying to use the County Government to enrich themselves with other people’s land.
4.I have perused and considered the Application as well as the opposition thereto. Rule 10(2) of Order 1 of the Civil Procedure Rules provides as follows:-
5.The Applicant County Government prays to be enjoined in these proceedings as an Interested Party. Black’s Law Dictionary 9th Edition, (Page 1232) defines an “Interested Party” as
6.In Trusted Society of Human Rights v Mumo Matemu & 5 Others (2014) eKLR, the Supreme Court reiterated this definition when it observed that:-
7.In the matter before me, the Applicant asserts that the land in dispute is community land and that by virtue of the Constitution and the Community Land Act, the said land is vested in itself to hold in trust for the greater and wider interests of the community. It is also the Applicant’s case that it understands the historical background of the dispute and that it has been arbitrating the dispute between the parties.
8.The Plaintiff however disputes the contention that the dispute relates to community land and asserts that the land in question is privately owned by himself. He further denies that any official from the Applicant County Government has ever approached or met him for purposes of arbitrating the dispute.
9.As it were, no evidence whatsoever was placed before me to demonstrate that the land in dispute is community land as stated by the Applicant. Neither was there any documentary support for the position that there is a historical background to the dispute and/or that the Applicant has been engaging the parties in arbitration as was alleged.
10.In the circumstances of this case, I am not persuaded that the Applicant is a necessary or proper party and/or that it may be affected by the verdict in these proceedings.
11.The application dated 8th October 2018 is accordingly dismissed with costs to the Plaintiff.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 23RD DAY OF JANUARY, 2020.J.O. OLOLAJUDGE