|Civil Case 93 of 2010
|MARY WACHANA WAFULA v JOSEPH W. OWIDI & RAILI OWIDI
|25 Mar 2011
|High Court at Kitale
|Martha Karambu Koome
|MARY WACHANA WAFULA v JOSEPH W. OWIDI & another  eKLR
|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
IN THE HIGH COURT OF KENYA
MARY WACHANA WAFULA........................................................................................ PLAINTIFF.
JOSEPH W. OWIDI )
R U L I N G.
2.The defendants obtained a decree against the applicant’s husband and in the event that the decree is executed, the plaintiff’s interest will substantially be affected. This application is also supported by the applicant’s affidavit sworn on 17th March, 2011. She has annexed a copy of the Title in respect of the suit property as well as a mutation form that shows the suit property was combined after a licenced surveyor identified the boundaries. According to the applicant her husband has not encroached on the boundaries of the defendant’s suit premises.
4. The applicant also opposed the execution and an application was dismissed after which the applicant filed Civil Appeal No. 5 of 2010 in Kitale which is still pending. According to the defendants, the matters raised in this application are Res Judicata because they have been adjudicated by this court and a decision was delivered. It was further argued that this application is an abuse of the court process. The matters having been litigated upon in Kitale HCCC No. 131 of 2000 which is still an active file and in the Court of Appeal Civil Appeal No. 201 of 2007 and multiplicity of suits revolving the same issues is prejudicial to the defendants. It was also noted by the court that the applicant registered herself over the suit premises 4 years after the defendants had commenced the suit for eviction in Kitale HCCC No. 131 of 2000. Moreover the applicants should have enjoined herself in HCCC NO. 131 OF 2000.
6. The above is the summary of salient issues raised in this application and the affidavit in opposition as well as submission by counsel for the applicant and the respondent. This application seeks for an order of stay of execution on the grounds that the plaintiff/applicant is a joint owner of the suit premises with her husband who is the defendant in Kitale HCCC No. 131 of 2000. This suit was filed in Eldoret where the applicant was granted interim orders. This file was transferred to Kitale where the suit premises and where the same parties have been involved in litigation over the same subject matter. The issues raised by the respondent regarding the bona fides of this application are varied issues of law.
8. The claim also under sections 27 and 28 of the Registered Land Act would has no foundation because as at the time the plaintiff registered herself as co owner of the suit land in 2004, there was already a claim by the defendants. Moreover, the claim by the defendant is not touching on the plaintiff’s right to absolute ownership but a claim of encroachment of the defendant’s land. In addition to the above findings, the applicant’s application has not satisfied the grounds for granting a stay of execution by providing security.
Ruling read and signed this 25th day of March, 2011.