REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. CIVIL APPL. NO 5 OF 2016 (O.S)

SAFARI KALUME MWAGONA ................................................PLAINTIFF

VERSUS

SAMUEL ODHIAMBO OGUK                                                                         

KABU MUMBA MUDACH & 11 OTHERS                                                     

PWANI JEZOZHUM CO. LTD ..............................................DEFENDANTS

JUDGMENT

1. The Applicant herein commenced this suit by way of originating summons dated 24^th March, 2016.

2.He sought the following;

a)  That let Samuel Odhiambo Oguk, Kabu Mumba Mudachi And 11 Others and Pwani Jezozhum Company Limited enter appearance to the summons within 21 days from the day of service of this summons to make defence because of challenging my litigation unconstitutionally into structural trespass on my lands since early January 2016.

b)  That hereupon this Honourable Court do make orders by rights of the two separate lands stated above in freehold tenure.

c)  That the costs of this application be provided for. Which application is based on the annexed affidavit of Safari Kalume Mwangona and such other grounds as may be adduced during the hearing.

3.  MY PRAYERS

1. That the remaining boundaries of my land as definite as dotted in the misrepresented plan hereto annexed and marked “SKM -3” Safari’s 1^st portion and as drawn to the front side of the misrepresented plan be measured for completeness of annexed plan.

4. The Applicant has listed eight (8) other prayers all to do with his entitlement to ownership of a portion of the suit property.

5. The application is supported by the affidavit of Safari Kalume Mwagona sworn on the 24^th March, 2016. In paragraph 1 of the affidavit he states;

“That in suit No. 388 of 2009(O.S) I’m a 7^th necessary party, Samuel Odhiambo Oguk is an advocate of Kabu Mumba Mudachi and 11 Others as a Plaintiff and Pwani Jezozhum Company Limited is a Defendant. Annexed is a copy of all litigants marked “S.K.M. – 1.”

6.  I have gone through the proceedings in Civil Suit No. 3830 of 2009 (O.S). The subject matter therein is Plot Number 830/II/MAINLAND NORTH Original Plot No. 155/66/. The Plaintiffs/Applicants are squatters/residents of Vikwatani Estate.

The Applicant herein Safari Kalume Mwagona is the 7^th necessary party. The matter came up for directions on 6^th November, 2017 to fix a hearing date before Honourable Justice A. Omolo.

7.  I have considered the suit herein. It was filed after the Civil Suit No. 383 of 2009 (O.S). I find that writing judgment herein will be an exercise in futility.

It is better for Civil Suit No. 383 of 2009 (O.S) to be heard and determined.

Since the Applicant herein is 7^th necessary party in that suit, he will have an opportunity to ventilate his claim.

8.  I find that the Plaintiff’s/Applicant’s claim herein though uncontested is dismissed to await the judgment in Civil Suit No. 383 of 2009 (O.S).

It is so ordered.

Ruling Dated, Signed and Delivered at Mombasa on the 23^rd day of November 2017.

L. KOMINGOI

JUDGE

23/11/2017