1. This Ruling relates to a Notice to Show Cause issued suo moto by the Court on 6/6/2024 when the Court discovered the existence of two similar suits, this suit as well as Kapsabet ELCLC NO. 023/2023 between Elikah Mbone vs Batson Mudashi Adingo.
2. On the said date 6/6/2024 the Court directed the Applicant in this matter as well as the Applicant in the other similar matter to appear before Court together with their Advocates on 1st July 2024 and to file an affidavit showing cause.
3. On 1/7/2024, the two files were placed before Court; and affidavit showing cause had been filed in both files, the Defendant sought and was granted leave to file an affidavit in reply to the affidavit showing cause. Henry Aswani Agusa filed an affidavit showing cause in this case No. Kapsabet ELCLC NO. E024/2023 whereat he is the Applicant while Elikah Mbone Okungi filed an affidavit showing cause Kapsabet No. ELCLC NO. E023/2023 where she is the Applicant.
4. The Respondent in both cases Batson Mudashi Adingo although granted leave to file an affidavit in response to the affidavit by Henry Aswahi Agosa and Elikah Mbone Okungi did not file the said affidavit.
5. Meanwhile the Court had determined a Notice of Preliminary objection in relation to the Originating Summons file in case no E023/2023 and determined that the issues raised in the preliminary objection of the existence of a similar suit, were interalia not pure points of law and hence the preliminary objection was disallowed and the issue of existence of similar suit was left to be ascertained during the trial as it was a matter of fact to be proved by evidence.
6. Now this Ruling, the Notice to Show Cause herein issued in both files was issued by the Court suo moto after the Court realized a seemingly similar matters and required an affidavit showing cause why suits should not be dismissed for being an abuse of the Court process.
7. In her affidavit showing cause Elikah Mbone Okungi depones of a purchase of 1 acre of NANDI/SEREM/271 by Jairo Mavisi Namisi in 1973 who in turn sold to William Mudoga her son in 2001 who gifted her the property and has settled thereon since the year 2001.
8. That Jane Mavisi Namesi having purchased from Kiptarus Arap Arusei who did not effect transfer to her and did also effect transfer to William Mudoga hence her claim in adverse possession; that her claim was thus based on purchaser’s interest and occupation hence was not an abuse of the Court process.
9. On his part Henry Aswani Agosa depose that the late Kiptarus Arap Arusei, the registered owner of NANDI/SEREM/271 which measured 3 acres had disposed of 2 acres to one Kichwen Arap Koech who in turn sold the said 2 acres to Herman Agosa Muyoma in 1994 who took possession and built a home thereon.
10. That Herman Agosa Muyoma as well as Kiptarus Arap Arusei were both deceased, and that Henry Aswani had sued on behalf of the Estate of Herman Agosa who enjoyed peaceful open quiet occupation. That the suit was therefore not an abuse of the Court process.
11. As noted at paragraph 4, Batson Mudashi Adingo was granted leave to file an affidavit in response to the affidavits filed by the Applicants Henry Aswani as well as Elikah Mmbone but did not file the same.
12. The merits or demerits of the matters before Court shall be determined at trial, after hearing of all the facts and evidence thus at this stage and in response to the Notice to Show cause the Court frames and determines only one issue for determination whether the Applicants in ELCLC No. 23/2023 and ELCLC 24/2023 have sufficiently shown cause that their suits are not an abuse of the Court process.
13. Both suits were filed by the same firm of Advocates in one case in respect of 1 acre in NANDI/SEREM/271, claimed by the Applicant in case No. 23/2023 and in the other case by the Applicant in case No. 24/2023, for two acres. Both Applicants case are different one claiming purchaser’s interest from Jane Mavisi, the original purchaser and the other claiming purchaser’s interest from Kichwen Arap Koech an original purchaser who also bought from the original registered owner Kiptarus Arap Arusei.
14. The Courts finds that the Applicants have sufficiently shown cause that their interests being separate in NANDI/SEREM/271, their suits are thus are not an abuse of the Court process and the suit shall proceed for full trial.
15. This ruling shall apply to the Notice to show Cause issued in case number E023/2023.
Ruling Delivered and Dated at Kapsabet this 19th September, 2024.
In the presence of;
1. Mr. Matete for the Respondent
2. Mr. Agutu for the Applicant
2. On the said date 6/6/2024 the Court directed the Applicant in this matter as well as the Applicant in the other similar matter to appear before Court together with their Advocates on 1st July 2024 and to file an affidavit showing cause.
3. On 1/7/2024, the two files were placed before Court; and affidavit showing cause had been filed in both files, the Defendant sought and was granted leave to file an affidavit in reply to the affidavit showing cause. Henry Aswani Agusa filed an affidavit showing cause in this case No. Kapsabet ELCLC NO. E024/2023 whereat he is the Applicant while Elikah Mbone Okungi filed an affidavit showing cause Kapsabet No. ELCLC NO. E023/2023 where she is the Applicant.
4. The Respondent in both cases Batson Mudashi Adingo although granted leave to file an affidavit in response to the affidavit by Henry Aswahi Agosa and Elikah Mbone Okungi did not file the said affidavit.
5. Meanwhile the Court had determined a Notice of Preliminary objection in relation to the Originating Summons file in case no E023/2023 and determined that the issues raised in the preliminary objection of the existence of a similar suit, were interalia not pure points of law and hence the preliminary objection was disallowed and the issue of existence of similar suit was left to be ascertained during the trial as it was a matter of fact to be proved by evidence.
6. Now this Ruling, the Notice to Show Cause herein issued in both files was issued by the Court suo moto after the Court realized a seemingly similar matters and required an affidavit showing cause why suits should not be dismissed for being an abuse of the Court process.
7. In her affidavit showing cause Elikah Mbone Okungi depones of a purchase of 1 acre of NANDI/SEREM/271 by Jairo Mavisi Namisi in 1973 who in turn sold to William Mudoga her son in 2001 who gifted her the property and has settled thereon since the year 2001.
8. That Jane Mavisi Namesi having purchased from Kiptarus Arap Arusei who did not effect transfer to her and did also effect transfer to William Mudoga hence her claim in adverse possession; that her claim was thus based on purchaser’s interest and occupation hence was not an abuse of the Court process.
9. On his part Henry Aswani Agosa depose that the late Kiptarus Arap Arusei, the registered owner of NANDI/SEREM/271 which measured 3 acres had disposed of 2 acres to one Kichwen Arap Koech who in turn sold the said 2 acres to Herman Agosa Muyoma in 1994 who took possession and built a home thereon.
10. That Herman Agosa Muyoma as well as Kiptarus Arap Arusei were both deceased, and that Henry Aswani had sued on behalf of the Estate of Herman Agosa who enjoyed peaceful open quiet occupation. That the suit was therefore not an abuse of the Court process.
11. As noted at paragraph 4, Batson Mudashi Adingo was granted leave to file an affidavit in response to the affidavits filed by the Applicants Henry Aswani as well as Elikah Mmbone but did not file the same.
12. The merits or demerits of the matters before Court shall be determined at trial, after hearing of all the facts and evidence thus at this stage and in response to the Notice to Show cause the Court frames and determines only one issue for determination whether the Applicants in ELCLC No. 23/2023 and ELCLC 24/2023 have sufficiently shown cause that their suits are not an abuse of the Court process.
13. Both suits were filed by the same firm of Advocates in one case in respect of 1 acre in NANDI/SEREM/271, claimed by the Applicant in case No. 23/2023 and in the other case by the Applicant in case No. 24/2023, for two acres. Both Applicants case are different one claiming purchaser’s interest from Jane Mavisi, the original purchaser and the other claiming purchaser’s interest from Kichwen Arap Koech an original purchaser who also bought from the original registered owner Kiptarus Arap Arusei.
14. The Courts finds that the Applicants have sufficiently shown cause that their interests being separate in NANDI/SEREM/271, their suits are thus are not an abuse of the Court process and the suit shall proceed for full trial.
15. This ruling shall apply to the Notice to show Cause issued in case number E023/2023.
Ruling Delivered and Dated at Kapsabet this 19th September, 2024.
In the presence of;
1. Mr. Matete for the Respondent
2. Mr. Agutu for the Applicant