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Original judgment

Ndambuki & another

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 adavit 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 conrm 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 adavits, 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 adavit 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 adavits take contrary positions with no justication, hence expunging them will be prejudicial to their clients. He prays that the 2nd adavit 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 adavit. Adding that the 2nd adavit 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 dierent path. Adding that in their 1st adavit, they have given half information on the status of the suit land whereas in the 2nd adavit 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 adavits led. In the 1st adavit, 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 adavit of 16.10.2023, they allude to the registration of the land in favour of Gregory Ndambuki Muoki. 8. It is noted that both adavits 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 adavits were also sworn just few days apart. In the circumstances, I nd no justication for the prayer to abandon one of the adavits. In any event, parties have led their submissions based on what has so far been led, including the earlier adavit of the 1st Respondent. 9. I opine that both adavits should remain on record, hence the application to expunge the earlier adavit 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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