Case ID:173895

Mary Chepwambok & another v Pauline Chepkemboi [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 231 of 2012

Parties:

Mary Chepwambok & Raphael Kimursi Tanui v Pauline Chepkemboi

Date Delivered:

21 Apr 2021

Case Class:

Civil

Court:

Environment and Land Court at Eldoret

Case Action:

Ruling

Judge(s):

Stephen Murigi Kibunja

Citation:

Mary Chepwambok & another v Pauline Chepkemboi [2021] eKLR

Advocates:

Mr. Kandie for Defendant

Court Division:

Environment and Land

County:

Uasin Gishu

Advocates:

Mr. Kandie for Defendant

History Advocates:

One party or some parties represented

Case Outcome:

1st Plaintiff’s notice of motion dismissed

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 OF KENYA AT ELDORET

E & L CASE NO. 231 OF 2012

MARY CHEPWAMBOK......................................1

ST

PLAINTIFF

RAPHAEL KIMURSI TANUI...............................2

ND

PLAINTIFF

VERSUS

PAULINE CHEPKEMBOI........................................DEFENDANT

RULING

[

NOTICE OF MOTION DATED 23

RD

JULY, 2020

]

1.

Mary Chepbwambok

, the 1

st

Plaintiff filed the application dated the 23

rd

July, 2020 seeking for the court of Appeal decision

CACA No. 83 of 2017

, in respect of

ELC Petition No. 11 of 2015

, to be adopted as judgment in this case, and the Defendant’s document dated 2

nd

August, 1972 that is subject to police investigations in

Inquiry File No. 7 of 2018

, be taken as forged. The application is supported by the affidavit sworn by

Mary Chepwambok

on the 23

rd

July, 2020.

2. The application is opposed by the defendant through the replying affidavit sworn by

Pauline Chepkemboi

on the 11

th

January, 2021.

3. That when this matter came up for mention on the 3

rd

November 2020, the Court noted that the 1

st

Plaintiff’s application detailed above had not been dealt with. That though the 1

st

Plaintiff who is in person was absent, the Court gave directions on filing of replies and written submissions in the presence of the learned Counsel for the 2

nd

Plaintiff and Defendant. The Court also directed the 2

nd

Plaintiff to ensure that the 1

st

Plaintiff was served with the order made. That following the subsequent mention of 2

nd

March 2021, only Counsel for the Defendant attended. The Counsel informed the Court that they had filed and served their replying affidavit and written submissions. The submission is dated the 24

th

February, 2021.

4. The following are the issues for the Court’s determinations;

(a) Whether the issues herein have been determined in Court of Appeal Civil Appeal No. 83 of 2017.

(b) Whether the 1

st

Plaintiff has made a reasonable case for entry of summary judgment.

(c) Who pays the costs of the application?

5. The Court has carefully considered the Notice of Motion, the affidavit evidence by the 1

st

Plaintiff and Defendant, the written submissions, superior court’s decisions cited and come to the following conclusions;

(a) That from the Replying affidavit, proceedings and judgments attached to the 1

st

Plaintiff’s supporting affidavit sworn on the 23

rd

July 2020,

Eldoret ELC Petition No. 11 of 2015

was between Joel Kenduiywa as Petitioner, and the District Criminal Investigations Officer Nandi, Attorney General, Francis Siratei Missos, Andrea Ruto and Pauline Chepkemoi as the 1

st

to the 5

th

Respondents, respectively. That petition was struck out with costs on the 1

st

March, 2017 after which, the Petitioner preferred an appeal being

Court of Appeal Civil Appeal No. 83 of 2017

. That the appeal was dismissed with costs to the 3

rd

to 5

th

Respondents on the 28

th

November, 2019. That as can be seen in the said documents, the 1

st

Plaintiff herein was not a party in the petition or the subsequent civil appeal.

(b) That from the heading of the ruling of 1

st

March, 2017 in

ELC Petition No. 11 of 2015

,

Joel Kenduiywa

, the petitioner, had among others sued for restitution of

Nandi/Kamobo/914

,

but he lost the claim and the appeal he filed to the Court of Appeal. That the Plaint dated 23

rd

January, 2006 at paragraphs 3, 4, 13, 14, 15, 24 and the prayers thereof leaves no doubt that the suit properties in this case are Nandi/Kamobo/913 and 2825. That the Defendant’s statement of defence as dated 29

th

March, 2006 at paragraph 10 indicates that Nandi/Kamobo/914 is also known as 2825.

(c) That as the relationship between the 1

st

Plaintiff and the parties in

ELC Petition No. 11 of 2015

and the subsequent appeal is not clear at this stage, the Court is unable to understand how the decisions in those matters impacts on the issues before this court in a way that it could be the basis of summary judgment being entered without hearing the parties and deciding on the issues on merit.

(d) That the typed proceedings shows that the 1

st

Plaintiff testified as

PW1

on the 1

st

March, 2017. That on the same date one Kipserem Kemboi testified as

PW2

. That the two witnesses were heard before

Ombwayo J

, who has since left on transfer to Environment and Land Court, Kisumu. That it is only fair and just for the parties to concentrate in having the remaining witnesses and parties heard without any further delay as obligated by

Section 1A(3) of the Civil Procedure Act Chapter 21 of Laws of Kenya

.

(e) That as the 1

st

Plaintiff’s application is without merit, then under

Section 27 of the Civil Procedure Act

, the Defendant is entitled to costs for she defended the notice of motion.

6. That flowing from the foregoing, the 1

st

Plaintiff’s notice of motion dated the 23

rd

July, 2020 is without merit and is dismissed with costs to the Defendant.

Orders accordingly.

DELIVERED VIRTUALLY AND DATED AT ELDORET THIS 21

ST

DAY OF APRIL, 2021.

S. M. KIBUNJA

JUDGE

In the presence of

:

Plaintiffs: No appearance.

Defendant: No appearance.

Counsel: Mr. Kandie for Defendant.

Court Assistant: Christine

and the Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.