Olumasi v Otwane; Etyang (Interested Party) (Environment & Land Case 24 of 2019) [2024] KEELC 6502 (KLR) (3 October 2024) (Ruling)
Neutral citation:
[2024] KEELC 6502 (KLR)
Republic of Kenya
Environment & Land Case 24 of 2019
BN Olao, J
October 3, 2024
Between
Daniel Olumasi
Applicant
and
Faustine Otwane
Respondent
and
Festus Odeke Etyang
Interested Party
Ruling
1.Daniel Olumasi(the Applicant herein) approached this court vide his Originating Summons amended on 20th August 2021 in which he impleaded Faustine Otwane seeking the substantive order that he had acquired by way of adverse possession all that portion of land measuring 0.62 Hectares out of parcel R. L. No North Teso/Kocholia/1473 (the suit land). He further asked the Court to direct that he be registered as proprietor of the suit land and the said Faustine Otwane, his servants agents and employees be injuncted from interfering with his quiet possession thereof.
2.The said Faustine Otwane did not enter appearance or file any defence and by a judgment delivered on 8th December 2022, Omollo J entered judgment for the Applicant as prayed. A decree followed and there is no evidence to suggest that any appeal was filed against that judgment.
3.The Applicant has now moved to this court vide his Notice of Motion dated 11th April 2024 in which he seeks the following orders against one Festus Odeke Etyang named as an Interested Party:1Spent2.An order of temporary injunction be and is hereby granted authorizing the Interested Party herein to sub-divide, sign transfer documents and transfer a portion measuring 0.6 Ha out of the land parcel No North Teso/Kocholia/7531 to the Applicant.3.That in default an order be and is hereby issued directing the Deputy Registrar of this Court to execute transfer forms in favour of the Applicant.4.That the costs of this application be provided for.The application is premised on the provisions of Articles 41 (2) A and 159 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. It is founded on the grounds set out therein and supported by the Applicant’s affidavit of even date.
4.The gravamen of the application is that while the hearing of this suit was in progress and even as the decree was issued in his favour in respect to the suit land, Succession proceedings were also being prosecuted whereby the suit land was sub-divided into several portions and the portion which the Applicant was entitled to measuring 0.62 Hectares fell within the land parcel No North Teso/Kocholia/7531 currently registered in the name of Festus Odeke Etyang who is the legal representative of the Estate of Etyang Omsugu Ekwenye the first proprietor of the said parcel of land. It is therefore fair and just that the said Festus Odeke Etyang be ordered to transfer the said land to the Applicant.
5.The following documents are annexed to the application:1.Copy of the decree herein.2.Copy of the confirmed Grant issued in Busia High Court Succession Cause No 217 of 2014 by which land parcel No North Teso/Kocholia/1473 was distributed to the beneficiaries including Festus Odeke Etyang.3.Mutation Form for the sub-division of the land parcel No North Teso/Kocholia/1473.4.Mutation Form for the sub-division of the land parcel No North Teso/Kocholia/5308.5.Mutation Form for the sub-division of the land parcel No North Teso/Kocholia/6051.The application is opposed and Festus Odeke Etyang who has been impleaded herein as the Interested Party has filed a replying affidavit dated 27th May 2024 in which he has deponed, inter alia, that the application lacks merit since the suit land has been sub-divided and no longer exists. That the order of injunction cannot be issued and this application is an abuse of the Court process and should be dismissed with costs.
6.FAUSTINE OTWANE the Respondent herein, did not file any response to the application.
7.This court directed that the application be canvassed by way of written submissions. These were filed by the Applicant and the Interested Party both acting in person.
8.I have considered the application, the rival affidavits and annextures as well as the submissions by the parties.
9.The following issues call for my determination in this application. These are:1.Whether Festus Odeke Etyang has properly been impleaded in these proceedings as an Interested Party.2.Whether the remedies sought are available to the Applicant.With regard to issue NO 1 above, although Festus Odeke Etyang has been impleaded in the application as an Interested Party, no application has been made and granted under the provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules which allows for such a party to be enjoined in proceedings. It reads:No application has been made seeking to enjoin the said Festus Odeke Etyang as an Interested Party in these proceedings. In any event, it is doubtful if Festus Odeke Etyang can properly be enjoined in these proceedings as an Interested Party. He has no interest in the suit land. His interest is in the land parcel No North Teso/Kocholia/7531 which is not the subject of these proceedings. In the case of TRUSTED SOCIETY OF HUMAN RIGHTS ALLIANCE -V- MUMO MATEMU & 5 OTHERS PETITION NO 12 of 2013 [2015 eKLR], the SUPREME COURT defined an Interested Party in the following terms:As already stated above, Festus Odeke Etyang who has been impleaded in these proceedings as an Interested Party has no stake in the land parcel No North Teso/Kocholia/1473 which is the suit land herein and which has infact already been sub-divided and no longer exists. That is clear from paragraph 5 of the Applicant’s supporting affidavit wherein he has deponed thus:SUBPARA 5:“That the L.R.North Teso/Kocholia/1473 was sub-divided creating several parcels in which the parcel falls within L.RNorth Teso/Kocholia/7531 measuring 0.772 Ha currently registered in the name of Festus Odeke Etyang the legal representative of the Estate of Etyang Omsugu Ekwenye who was the first proprietor.”It follows that since Festus Odeke Etyang has an interest in the land parcel No North Teso/Kocholia/7531 yet the subject of this suit is land parcel No North Teso/Kocholia/1473, he cannot possibly be enjoined in these proceedings and any attempt to do so would have been futile. The attempt to rope him in these proceedings is futile and clearly, his name must be expunged.
10.Even assuming that the said Festus Odeke Etyang has properly been enjoined in these proceedings, the remedies sought by the Applicant would not have been available to the Applicant. This is because, the Applicant seeks an order to authorize the Interested Party to sign transfer documents to sub-divide a portion measuring 0.6Ha out of the land parcel No North Teso/Kocholia/7531 in favour of the Applicant and in default, the Deputy Registrar of this Court be authorized to do so. He also seeks an order of temporary injunction. Again, those orders are not available to the Applicant for the aforestated reasons being that the land parcel No North Teso/Kocholia/7531 is not the subject of this suit. Further a temporary injunction, as per Order 40 Rule 1 of the Civil Procedure Rules is ordinarily issued in a pending suit to preserve the property in dispute. This suit has already been heard and finally determined and there is nothing still pending. And most importantly, the ownership of the land parcel No North Teso/Kocholia/7531 is not in dispute in this case. It follows that the application is for dismissal.
11.On the issue of costs, in the circumstances of this case, the order that commends itself to make is that the parties meet their own costs.
12.The up-shot of all the above is that having considered the application herein, I make the following disposal orders:1.The Notice of Motion dated 11th April 2024 is devoid of merit. It is dismissed.2.The parties shall bear their own costs.
BOAZ N. OLAOJUDGE3RD OCTOBER 2024RULING DATED, SIGNED AND DELIVERED ON THIS 3RD DAY OF OCTOBER 2024 BY WAY OF ELECTRONIC MAIL AND WITH NOTICE TO THE PARTIES.BOAZ N. OLAOJUDGE3RD OCTOBER 2024