Case ID:169941

Moses Banda Wafula Jimmy Shiundu Chitere [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 21 of 2013 (Formerly Bungoma CMCC No. 123 of 2001)

Parties:

Moses Banda Wafula Jimmy Shiundu Chitere

Date Delivered:

11 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Bungoma

Case Action:

Ruling

Judge(s):

Boaz Nathan Olao

Citation:

Moses Banda Wafula Jimmy Shiundu Chitere [2021] eKLR

Court Division:

Environment and Land

County:

Bungoma

Case Outcome:

File marked closed

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 BUNGOMA

ELC CASE NO. 21 OF 2013

(

FORMERLY BUNGOMA CMCC No. 123 of 2001)

MOSES BANDA WAFULA............................................................. PLAINTIFF

VERSUS

JIMMY SHIUNDU CHITERE.....................................................DEFENDANT

R U L I N G

What is coming up before me is the application dated 18

th

November 2019. In the application, the plaintiff/Applicant seeks the following two (2) remedies: -

1. Spent

2. Order dated 17

th

September 2018 dismissing this suit be set aside and the suit be reinstated to hearing.

The application is opposed. When the application was placed before me on 21

st

October 2020, it was agreed that it be canvassed by way of written submissions. Those submissions were subsequently filed both by

MR KHAKULA

instructed by the firm of

J. S. KHAKULA & COMPANY ADVOCATES

for the plaintiff/Applicant and by

MR KWEYU

instructed by the firm of

E. O. KWEYU & COMPANY ADVOCATES

for the defendant/Respondent.

Having perused this file, I notice that there are no pleadings herein. It would appear that

BUNGOMA SPM CIVIL CASE FILE No 123 of 2001

was transferred to this Court by an order issued by

HON M. O. WAMBANI – SENIOR PRINCIPAL MAGISTRATE

on 23

rd

November 2012. That file was subsequently placed inside this file. The order issued on 23

rd

November 2012 was out of jurisdiction. I notice that the parties herein had on 30

th

November 2016 entered a consent referring the dispute relating to land parcel

NO KIMILILI/ KIMILILI/924

for determination by the

KIMILILI SUB – COUNTY COMMISSIONER

. In the absence of pleadings, there could not have been any dispute to refer to the commissioner on 30

th

November 2016 nor any suit to dismiss on 17

th

September 2018. Those orders were issued in error and are hereby vacated.

In the absence of pleadings, the application dated 18

th

November 2019 has no foundation. It is struck out.

What probably caused this confusion was the placing in this file of

BUNGOMA SPMC CIVIL CASE FILE No 123 of 2001

pursuant to the orders of 23

rd

November 2012 by

HON M. O. WAMBANI – SENIOR PRINCIPAL MAGISTRATE

.

I therefore make the following orders: -

1. The consent order recorded by the parties herein on 30

th

November 2016 and the order issued on 17

th

September 2018 are hereby vacated and set aside as there was no suit to refer to arbitration by the commissioner nor to dismiss.

2. BUNGOMA SPMCC No 123 of 2001 was improperly transferred to this Court vide an order dated 23

rd

November 2012. The file be returned to that Court for mention on 11

th

February 2021 for purposes of taking directions as to hearing.

3. The application dated 18

th

November 2019 as well as the Bill of Costs filed by the defendant on 3

rd

May 2019 have no foundation and are hereby struck out.

4. This file be marked closed.

Boaz N. Olao.

J U D G E

11

th

February 2021.

Ruling dated, signed and delivered at BUNGOMA this 11

th

day of February 2021

by way of electronic mail in keeping with the

COVID – 19

pandemic guidelines.

Boaz N. Olao.

J U D G E

11

th

February 2021.