Case ID:185827

David Kiptoo Cheluget v Abraham Kipruto Cheluget & 3 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case E025 of 2021

Parties:

David Kiptoo Cheluget v Abraham Kipruto Cheluget, Mike Kipkorir Cheluget, Job Kipkemei Cheluget & John Kipkemboi Cheluget

Date Delivered:

18 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Eldoret

Case Action:

Ruling

Judge(s):

Elija Ogoti Obaga

Citation:

David Kiptoo Cheluget v Abraham Kipruto Cheluget & 3 others [2021] eKLR

Court Division:

Environment and Land

County:

Uasin Gishu

Case Outcome:

Suit ordered

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 ELDORET

ELC NO.E025 OF 2021

DAVID KIPTOO CHELUGET.......................................................PLAINTIFF/APPLICANT

AND

ABRAHAM KIPRUTO CHELUGET..............................1

ST

DEFENDANT/RESPONDENT

MIKE KIPKORIR CHELUGET.....................................2

ND

DEFENDANT/RESPONDENT

JOB KIPKEMEI CHELUGET........................................3

RD

DEFENDANT/RESPONDENT

JOHN KIPKEMBOI CHELUGET..................................4

TH

DEFENDANT/RESPONDENT

RULING

1. This is a ruling in respect of two similar Preliminary Objections raised by the 1

st

to 4

th

Defendants on the ground that this suit offends section 6 of the Civil Procedure Act. The Plaintiff in this case is the biological father of all the four Defendants. The Plaintiff, the four Defendants as well as the mother of the Defendants are registered owners of

LR No.Uasin-Gishu/Kormaet Scheme/57

(suit property).

2. On 8

th

December, 2020, the Plaintiff filed a suit against two of his sons in ELC 115 of 2020 in which he sought that the portion utilized by the two sons be reverted to him. The suit property is said to be 150 acres. The Plaintiff is utilizing 50 acres thereof, whereas the Defendants are utilizing 100 acres thereof.

3. While ELC 151 of 2020 was pending, the Plaintiff again filed the present suit on 23

rd

April, 2021 in which he now seeks to bar all the four Defendants from occupying or constructing any portion of the suit property. He contemporaneously filed an application for temporary injunction barring the four Defendants from occupying or utilizing any portion of the suit property. Before the Plaintiff could prosecute the application for injunction, he filed another application on 19

th

May, 2021 in which he seeks to be allowed to sell two acres out of the suit property to enable him pay school fees for his two daughters who are studying in foreign universities.

4. The Plaintiff is said to be aged about 95 years. The parties were directed to file written submissions in respect to the two Preliminary Objections. It is only the Defendants who filed their submissions. I have considered the submissions by the Defendants with regard to the two Preliminary Objections. This is a very unfortunate case where a father who is advanced in age is forced to do cases with his sons. This is a matter which should be dealt with in an amicable manner.

5.

Section 6 of the Civil Procedure Act provides

as follows:-

“No Court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or other Court having jurisdiction in Kenya to grant the relief claimed”.

6. It is clear from

the Provisions of Section 6 of the Civil Procedure Act (Supra)

that the present suit is subjudice. I proceed to stay the present suit. The Plaintiff should pursue

ELC 115 of 2020

but I strongly urge the parties to give

Mediation a chance if they wish to pursue ELC 115 of 2020

. I make no order as to costs as the parties herein are related.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 18TH NOVEMBER, 2021

E.O. OBAGA

JUDGE

IN THE VIRTUAL PRESENCE OF;

……………………………….

………………………………

COURT ASSISTANT – MERCY

E.O. OBAGA

JUDGE