Case ID:169414

Selly Jepchumba Samoei & 3 others v Kimwei Arap Samoei [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 45 of 2019

Parties:

Selly Jepchumba Samoei (Suing on behalf of the Estate of the late Joseph Kisorio Samoei, David Kimtai Mwei, James Kimaru Songok & William Some Songok v Kimwei Arap Samoei

Date Delivered:

26 Jan 2021

Case Class:

Civil

Court:

Environment and Land Court at Kitale

Case Action:

Ruling

Judge(s):

Francis Mwangi Njoroge

Citation:

Selly Jepchumba Samoei & 3 others v Kimwei Arap Samoei [2021] eKLR

Court Division:

Environment and Land

County:

Trans Nzoia

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 45 OF 2019

SELLY JEPCHUMBA SAMOEI

(Suing on behalf of the Estate of the late

JOSEPH KISORIO SAMOEI.............................1

ST

PLAINTIFF

DAVID KIMTAI MWEI........................................2

ND

PLAINTIFF

JAMES KIMARU SONGOK...............................3

RD

PLAINTIFF

WILLIAM SOME SONGOK..............................4

TH

PLAINTIFF

VERSUS

KIMWEI ARAP SAMOEI........................................DEFENDANT

RULING

The Application

1. The application dated

4/3/2020

and filed in court on the same date has been bought under

Section 1A, 1B, 3 & 3A, 63(e) and 79G

of the

Civil Procedure Act

and

Order 42 Rules 6(1), 2

and

6

of the

Civil Procedure Rules

. The defendant seeks the following orders:-

a. …spent

b. …spent

c. There be stay of execution and/or further execution of the orders emanating from the judgement delivered on 27/2/2020 in Kitale ELC No. 45 of 2019 and all subsequent proceedings in this matter be stayed pending hearing and final determination of the intended appeal.

d. Costs be provided for.

2. The application is supported by the affidavit of the defendant sworn on

4/3/2020.

The grounds upon which the said application is made are that the applicant has preferred an appeal against the decision of this court which has a high probability of success, that the application has been made without unreasonable delay and that the applicant would be ready and willing to provide security.

The Response

3. The 1

st

plaintiff filed a replying affidavit sworn on

16/3/2020

and a further replying affidavit sworn on

13/11/2020

. In the first affidavit she depones that the interment that had been sought to be halted by way of the suit had already been conducted; that this court has already made a judgment on the basis of ownership and only an appeal, if successful, can operate against that finding; that there is no intention to evict the applicant from the land and that the court declared the suit property family land and the applicant is part of that family and entitled to a portion thereof.

Submissions

4. The plaintiffs filed their written submissions on

20/11/2020

. I have perused the file record and found no submissions filed on behalf of the defendant.

Determination

5. Having examined the application before the court and the response at length, it is not disputed that the interment that had been sought to be halted by means of the suit has already taken place and that the land has already been registered in the name of the estate of the late Kipsongok Arap Chepkulei of which the applicant is one of the beneficiaries. His claim would in the circumstances not lie as against the respondents in person as they have evidently lack capacity after the registration of the estate as proprietor, and this court has reason to believe that the property is not in immediate likelihood of being disposed of in the circumstances save upon conduct of succession proceedings. Besides, orders of stay may only be issued against that which has not taken place and in the circumstances described above they can not obtain in this case at this point.

6. Consequently the application dated

4/3/2020

has no merit and the same is dismissed with no orders as to costs.

It is so ordered.

Dated, signed

and

delivered

at

Kitale via electronic mail

on this

26

th

day of

January, 2021.

MWANGI NJOROGE

JUDGE, ELC, KITALE.