1.This is a ruling in respect of a notice of motion dated 24/3/2023 in which the Plaintiffs/Applicants seeks the following orders: -1.Spent.2.That this Honourable court be pleased to issue an order directing the Officer Commanding Police Station, (OCS, Kesses Police Station) to assist in enforcement of the court’s orders given 28th May, 2020, by stopping the defendant (sudi Oscar Kipchumba) from fencing the disputed suit land being the suit property herein known as LR. 7991, Kesses, situated at Kesses next to Moi University.3.That in the event the defendant (Sudi Oscar Kipchumba)has successfully fenced the disputed suit land known as LR 7991 situated at Kesses next to Moi University, this Honourable court be pleased to issue an order directing the officer commanding police station (OCS, Kesses Police Station) to assist by providing security to the Applicants herein to remove/uproot the entire fence erected thereon.4.Costs be in the cause.
2.The Applicants are among the administrators of the Estate of Kibor Arap Talai who is the registered owner of LR. No. 7991 (suit property) which is situated next to Moi University. The process of administration and distribution of the Estate is going on at Eldoret under Eldoret HC Succession Cause No 50 of 2014.
3.On 8/4/2020, the Applicants filed an application for injunction. This application was fully heard and an injunction was granted on 28/5/2020 restraining the Defendant from interfering with the suit property until the hearing and determination of the suit.
4.The Applicants did not take any step to prosecute their suit. On 9/11/2021, the court issued notice to show cause why the suit should not be dismissed. The notice to show cause came up on 29/11/2021 when the Applicant’s counsel explained why the Plaintiffs had not prosecuted their case.
5.The court spared the suit from dismissal and directed that the matter be mentioned before the Deputy Registrar for parties to confirm compliance with pre-trial requirements. On 2/2/2022, the Plaintiff’s counsel confirmed to court that they had complied. The Defendant who had not complied was given time to do so. The matter was fixed for mention on 16/3/2020. Come 16/3/2022, the Defendant had not complied. The Defendant was given a last chance to comply. The matter was fixed for mention on 30/3/2022. Nothing happened thereafter until the present application was filed.
6.The Applicants contend that despite the defendant being restrained from interfering with the suit property, he has continued to fence a portion of the suit property. It is on this basis that they seek the orders set out in paragraph 1 hereinabove.
7.The Respondent opposed the Applicants’ application based on grounds of opposition dated 26/4/2023 and a replying affidavit filed in court on 9/5/2023. The Respondent contends that the orders which are sought to be enforced are nonexistent as the same lapsed on 27/5/2021 pursuant to the provisions of order 40 Rule 6 of the Civil Procedure Rules.
8.The Respondent states that the Applicants never moved the court to extend the injunctive orders. The Respondent denies ever fencing any portion of the suit property and says that if there was any fencing, the fencing must have been done by Eunice Talai long before the filing of this suit.
9.The Respondent argues that the Applicants have come to court with unclean hands in that they have failed to disclose that they are facing criminal charges as a result of destroying fences belonging to other beneficiaries; failed to disclose that they have filed a constitutional petition in the High Court seeking similar reliefs and failed to disclose that the succession court has ordered that the land occupied by each beneficiary be re-surveyed.
10.The Respondent contends that he Applicants’ application is an abuse of the process of court which should be dismissed.
Analysis and determination
11.The Applicants filed their submissions on 16/4/2023. The Respondent filed the submission on 9/5/2023. I have considered the Applicant’s application, the opposition to the same by the Respondent as well as the submissions by the parties herein. The issues which emerge for determination are firstly whether there are any orders of injunction capable of being enforced by the OCS Kesses Police Station and secondly, whether there is any fence which has been put up on any portion of the suit property and whether orders should issue for its demolition.
12.There is no contention that there were injunctive orders which were given on 28/5/2020. The injunctive orders having been given on 28/5/2020, the Applicants were under obligation to prosecute their suit within 12 months failing which the orders of injunction would automatically lapse.
13.Order 40 Rule 6 of the Civil Procedure Rules provides as follows:-
14.It is clear that the Applicants’ suit was not determined within 12 months’ from 28/5/2020. The was no application made for the extension of the injunctive orders. It therefore means that the orders lapsed on 27/5/2021. There are therefore no orders in place as to call for their enforcement by the OCS Kesses Police Station.
15.In the case of Barclays Bank of Kenya Limited –Vs- Henry Ndungu Kinuthia & another (2018) eKLR the Court of Appeal stated as follows:-
16.The Applicants contended that the Respondent had put up a fence on part of the suit property. A look at the supporting affidavit to the Applicants’ application shows that they have deponed to events which occurred in 2020. There is no mention of any fence which was put up in 2023 or is being put up. No wonder that is why the Applicants have couched their prayer that in the event the fence has been completed, they be allowed to demolish the same.
17.There is therefore no evidence that the Respondent has put up any fence. This being the case, the court cannot give orders where even the Applicants themselves do not know if a fence has been put up or not. Infact even if the orders of injunction were to be in force, the manner in which the enforcement is sought is a clear abuse of the process of court.
18.It is clear that the Applicants’ application is devoid of merit. The same is dismissed with costs to the Respondent.It is so ordered.