1. The application before me is that dated 3 February 2025 said to have been filed by the plaintiff. The application seeks the following prayers :
(i) That this Honourable Court be pleased to issue an order of enforcement of the orders of this court issued on the 9th October 2018.
(ii) That the costs of this application be provided for.
2. The application is based on the following grounds :
(a) That on 9 October 2018, the Honourable Court gave its judgment against the defendant adopting the Nyamira Land Registrar’s and Surveyor’s report between land parcel No. Central Kitutu/Mwogeto/1230 and 1239.
(b) That through a notice of motion dated 5 April 2019 the defendant made an application seeking to set aside the orders issued on 9 October 2019 and that the defendants be allowed to file their defence out of time which application was dismissed.
(c) That the defendants sought to set aside the adoption of the judgment in terms of the Land Registrar’s report which was refused on 9 October 2019.
(d) That the execution of the judgment requires the respondent to be evicted from the plaintiff’s parcel of land which they had encroached upon.
3. The application is allegedly supported by the affidavit of Nyakundi Onchiri who has purportedly deposed that he is the plaintiff in this matter.
4. I see that this suit was commenced through a plaint filed on 1 December 2016 by Nyakundi Onchiri. He pleaded that he is the registered proprietor of the land parcel Central Kitutu/Mwogeto/1230 measuring 0.9 Ha. He pleaded that the respondents occupy the adjacent land parcel Central Kitutu/Mwogeto/1239. He contended that in March 2016, the respondents illegally encroached into his land parcel No. 1230 and started ploughing part of it. In the plaint, he asked for an order of eviction and permanent injunction against the respondents from this land parcel No. 1230 together with costs.
5. I see that there was an application dated 19 June 2017 filed by one Nelson Orandi Nyakundi seeking to substitute Nyakundi Onchiri, the original plaintiff, who was said to be deceased. Indeed, a Certificate of Death was annexed to that application showing that Nyakundi Onchiri died on 11 April 2017. The application was allowed on 18 September 2017.
6. Although it is not raised in the Grounds of Opposition opposing this application, which grounds address the merits of the application, it is clear to me that the application before me is a non-starter as it cannot possibly be supported by an affidavit of a person who is deceased. The deponent to that affidavit alleges to be Nyakundi Onchiri which cannot be true as Nyakundi Onchiri died on 11 April 2017. I am afraid that this application is supported by an incompetent if not outrightly false affidavit and I cannot even proceed to the merits thereof. That affidavit is for striking out and it is hereby struck out. Without a competent affidavit, it cannot be said that there is any application before me and this application is also for striking out. It is hereby struck out.
7. Costs will be to the respondents.
8. Orders accordingly.
DATED AND DELIVERED THIS 15 DAY OF JULY 2025
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in presence of :
Mr. Bosire Gichana for the applicant
Mr. Ochwangi for the respondent
Court Assistant : Michael Oyuko