Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedBungoma High Court Civil Case (ELC) – not fully stated on record (formerly Bungoma High Court suit arising from Kimilili/Kimilili/108)· [2021] KEELC 928 (KLR)

Japhether Wamalwa Kilui & 8 others v Mathew Munyole Wafula & another [2021] KEELC 928 (KLR)

Environment and Land Court
28 October 2021
BOBoaz N. Olao
2,514 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Bungoma Environment and Land Court reinstated land buyers' cancelled titles, dismissed the defendant's counter-application, and ordered the arrest of a defendant ignoring court orders.

What this practically means

#

Executive summary

#
This ruling by Boaz N. Olao J of the Environment and Land Court at Bungoma, delivered on 28th October 2021, resolved two competing applications arising from a long-running land dispute over parcel KIMILILI/KIMILILI/108. The nine plaintiffs purchased portions of the parcel from the defendants' father between 1973 and 1994, paid in full and took possession. The defendants subsequently conspired in Bungoma High Court Civil Case No 3 of 2001 to share the parent parcel between themselves via a consent, extinguishing the plaintiffs' titles. This suit was compromised by a consent order of 5th April 2011 (Muchemi J) requiring the defendants to sub-divide parcels 4086 and 4087 and vest defined shares in the plaintiffs. The plaintiffs' Notice of Motion dated 6th May 2021 sought reinstatement of their cancelled titles; the 1st defendant's Notice of Motion dated 25th May 2021 sought to compel the 1st, 4th and 8th plaintiffs to avail themselves for implementation. The court found the 1st defendant had effectively conceded the plaintiffs' application, describing the defendants' conduct as fraudulent shenanigans amounting to an abuse of process. It allowed the plaintiffs' motion as prayed, dismissed the 1st defendant's motion with costs to the 1st defendant, and further issued a warrant of arrest against the 2nd defendant, still at large despite contempt proceedings in which the 1st defendant was fined Kshs 50,000 by Ombwayo J.

Key legal issues

#
01

Whether the plaintiffs' application for reinstatement of their titles should be allowed

Holding

Allowed, since the 1st defendant conceded that the consent judgment of 5.4.2011 required implementation and the defendants had conspired to defeat the plaintiffs' purchases

Reasoning

The 1st defendant's own replying affidavit conceded the correct action was to implement the judgment of 5.4.2011. The court found the defendants had conspired in Bungoma High Court Civil Case No 3 of 2001 to extinguish parcel 108 and defeat the plaintiffs' purchases. Ten years after the consent order the defendants had not facilitated its execution, and the court found their conduct fraudulent and an abuse of process.

p. 3
02

Whether the 1st defendant could compel the 1st, 4th and 8th plaintiffs to avail themselves for implementation

Holding

Dismissed; the plaintiffs had not impeded implementation and two of them were deceased

Reasoning

The court found nothing showing the plaintiffs impeded execution of the consent judgment. The 1st defendant knew the 4th and 8th plaintiffs were deceased, making his prayer to compel them nonsensical. His application was viewed as a tactical move to forestall the ruling on the plaintiffs' motion and amounted to conceding that motion.

p. 4

Legal principles established

#
  • Court orders shall not be made in vain and disobedience invites enforcement including warrants of arrest
  • Litigation that constitutes an abuse of court process must be brought to an end

Court orders

#
  1. 1.The plaintiffs' Notice of Motion dated 6th May 2021 is allowed as prayed
  2. 2.The 1st defendant's Notice of Motion dated 25th May 2021 is dismissed
  3. 3.Costs of both applications shall be borne by the 1st defendant
  4. 4.A warrant of arrest to issue in respect of BEN MACHABE WAFULA (the 2nd defendant) to be executed by the OCS KIMILILI POLICE STATION who shall attend Court on 8th November 2021 to confirm compliance
  5. 5.Mention on 8th November 2021 for further orders
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act and Order 50 Rules 1, 3 and 4 of the Civil Procedure Rules (plaintiffs' application); Sections 3 and 3A of the Civil Procedure Act (1st defendant's application)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Japhether Wamalwa Kilui & 8 others v Mathew Munyole Wafula & another [2021] KEELC 928 (KLR)", Case Analysis (2021). Bungoma High Court Civil Case (ELC) – not fully stated on record (formerly Bungoma High Court suit arising from Kimilili/Kimilili/108). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/928/eng@2021-10-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.