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Original judgment

Kung’u & another

Kung’u & another (As Administrators of the Estate of Cosmas Kungu Muhinja - Deceased) v Kibagare Slums Association (Sued Through Abdi Godana Dida & David M. Nyaga, its Ocials and Trustees); National Land Commission (Interested Party) (Environment & Land Case 64 of 2020) [2024] KEELC 13359 (KLR) (14 November 2024) (Ruling) Neutral citation: [2024] KEELC 13359 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT & LAND CASE 64 OF 2020 LN MBUGUA, J NOVEMBER 14, 2024 BETWEEN JAMES NG’ANG’A KUNG’U ............................................................... 1ST PLAINTIFF MYRA WANJIRU KUNG’U SADIQ ALIAS MONICA WANJIRU KUNG’U ................................................................................................ 2ND PLAINTIFF AS ADMINISTRATORS OF THE ESTATE OF COSMAS KUNGU MUHINJA DECEASED AND KIBAGARE SLUMS ASSOCIATION (SUED THROUGH ABDI GODANA DIDA & DAVID M. NYAGA, ITS OFFICIALS AND TRUSTEES) ............... DEFENDANT AND NATIONAL LAND COMMISSION ...................................... INTERESTED PARTY RULING 1. Before me is the defendant’s Notice of Motion application dated 29.4.2024 seeking orders to strike out the suit. The application is premised on the grounds on the face of the application and the supporting adavit of John Mwangi, the chairman of the defendant. They contend that the plaintis are not the owners of the suit land which still belongs to the Kenya railways. 2. The plaintis oppose the application vide their replying adavit dated 1.7.2024 sworn by James Nganga Kungu one of the administrators of the estate of Cosmas Kungu. He contends that the application is premature and a waste of court’s precious time as the survey report by National Land Commission did not in any way confer proprietary rights and or possession of the suit property upon https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13359/eng@2024-11-14 1

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the defendants. Adding that the suit is partly heard where PW1 has given his testimony and is yet to be stood down. 3. I have considered all the arguments proered herein. In John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR Justice Gikonyo held that; “ The fundamental principles of justice are enshrined in the entire Constitution and specically in Article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the dened principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court…..” 4. It is the nding of this court that the same principles would apply in a question of whether a suit should be sustained or struck out. The trial herein is mid stream, where the re-examination of PW1 is underway. Any issues relating to the merits or demerits of the case ought to be ventilated in the main hearing and not in interlocutory applications. 5. In the end, I nd that the application dated 29.4.2024 is not merited, the same is hereby dismissed with costs to the plaintis. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14th DAY OF NOVEMBER 2024 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of: Kimiti for Plainti Waigwa for Defendant Njuguna for Interested Party Court Assistant: Vena https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13359/eng@2024-11-14 2

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