Ndambuki & another (Suing as an administrator of the Estate of the late Gregory Ndambuki) v Osman & 2 others (Environment & Land Petition E022 of 2023) [2023] KEELC 22348 (KLR) (14 December 2023) (Ruling) Neutral citation: [2023] KEELC 22348 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT & LAND PETITION E022 OF 2023 LN MBUGUA, J DECEMBER 14, 2023 BETWEEN MARIA NDUMBA NDAMBUKI ................................................... 1ST PETITIONER KIENDI NDAMBUKI ..................................................................... 2ND PETITIONER SUING AS AN ADMINISTRATOR OF THE ESTATE OF THE LATE GREGORY NDAMBUKI AND ABBEY ABDINOOR OSMAN ...................................................... 1ST RESPONDENT NATIONAL LAND COMMISSION ............................................ 2ND RESPONDENT CHIEF LAND REGISTRAR ........................................................ 3RD RESPONDENT RULING 1. This matter came up on 19.9.2023 whereby, the court gave directions for the suit to be heard by way of written submissions. The petitioners were to le their submissions along with any further adavit by 17.10.2023, while the respondents were to le their submissions by 1.11.2023. The matter was then to be mentioned on 4.12.2023 to conrm the ling of the submissions. 2. Come the date of 4.12.2023 and the 1st respondent indicated to the court that they had led 2 replying adavits, one led on 5.10.2023, while the other was led on 16.10.2023. The 1st Respondent made an oral application for the earlier adavit to be expunged from the records. This ruling relates to the aforementioned application. 3. In opposition, counsel for the 3rd Respondent argued that the 1st Respondent’s adavits take contrary positions with no justication, hence expunging them will be prejudicial to their clients. He prays that the 2nd adavit be the one to be expunged from the records. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22348/eng@2023-12-14 1
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4. On its part, the Attorney General submits that it already took the position taken by the 1st Respondent in its rst adavit. Adding that the 2nd adavit only introduces the issue that the petitioner has applied for allocation of the land and that there ought to have been no application of the land if there was a status quo order. 5. The Petitioners did not oppose the application. 6. In rejoinder, counsel for the 1st Respondent submitted that they had not taken a dierent path. Adding that in their 1st adavit, they have given half information on the status of the suit land whereas in the 2nd adavit contains full information on the renewal of the lease, and it is only the 1st Respondent which could give the said information that is crucial in dispensing justice. 7. I have considered that the directions on the hearing of the suit were given on 19.9.2023 of which, parties were to le their submissions based on the adavits led. In the 1st adavit, the 1st respondent avers that the petitioners are strangers to the suit land which was initially registered to one Ali Sher son of Noormohamed, while in the adavit of 16.10.2023, they allude to the registration of the land in favour of Gregory Ndambuki Muoki. 8. It is noted that both adavits have been sworn by the same deponent, and that the 1st respondent claims that the earlier one only gives half information while the latter has full particulars. Further, I have taken into consideration that both adavits were also sworn just few days apart. In the circumstances, I nd no justication for the prayer to abandon one of the adavits. In any event, parties have led their submissions based on what has so far been led, including the earlier adavit of the 1st Respondent. 9. I opine that both adavits should remain on record, hence the application to expunge the earlier adavit is hereby dismissed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:M/s Mwikali holding brief for Mwendwa for Petitioner Njuguna for 1st Respondent Motari for 2nd & 3rd Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22348/eng@2023-12-14 2
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