Gavava v Gayao & 3 others (Environment and Land Case 4 of 2019) [2020] KEMC 16 (KLR) (13 February 2020) (Ruling) Neutral citation: [2020] KEMC 16 (KLR) REPUBLIC OF KENYA IN THE HOLA LAW COURTS ENVIRONMENT AND LAND CASE 4 OF 2019 PA NDEGE, PM FEBRUARY 13, 2020 BETWEEN ZEPHANIA RAYMOND GAVAVA ........................................................... PLAINTIFF AND MARGARET GAYAO ....................................................................... 1ST DEFENDANT BLANDINA GHAMACHANA MWALIMU ................................. 2ND DEFENDANT BASHORA LOTH MALIMU .......................................................... 3RD DEFENDANT LEAH NDEA MALIMU ................................................................... 4TH DEFENDANT RULING 1. In the suit herein, the plaintifi herein, Zephania Raymond Gavava, by way of a Plaint dated 11th March, 2019, is seeking for amongst others, declaratory reliefs that he purchased all that Plot known TRCC/HL/R/300 approved by Physical Development Plan No. PDP/TRD/3/2/99/7 together with all that permanent residential house standing thereon situated at Hola Mission in Hola Town within Tana River County from Marthew Bashora Malimu (Deceased) vide sale agreement dated 8th March, 2017 and that upon taking out the Grant of Letters of Administration by the Defendants in respect of the Estate of Mathlew Bashora Malimu (Deceased) from whom the Plaintifi purchased the Plot and the permanent residential house the plaintifi be included as a beneficiary of the Estate of Mathlew Bashora Malimu (Deceased) in respect of the suit property and the Defendants be compelled to transfer ownership of the suit property to the Plaintifi. 2. In the alternative, the plaintifi is also praying that the Defendants be compelled and ordered to refund to the Plaintifi a sum of Kshs. 630,000/= together with interest at the rate of 14% from the date of the purchase of the Plot and the permanent residential house until payment in full. https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/16/eng@2020-02-13 1
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3. A statement of Defence was well filed by the Defendants on 17th April, 2019 and the Plaintifi also had an opportunity to respond to the same by filing a reply to the stated of Defence dated 29th May, 2019. The Defendant then filed a preliminary objection dated 20th November, 2019 stating that the present suit filed by the Plaintifi is utter abusive of Court Process, premature and incompetent asserting that the Defendants are not the administrators of the estate of Martlew Bashora Malimu (Deceased) who is the owner of the suit property and in view of the forgoing the Defendant are not the proper parties to be sued among others. 4. Whereas I do appreciate the grounds raised in the Objection and the Defendants' arguments and authorities in support, I do find that the Plaintifi has disclosed some interest ( whether the interest is suficient or not is however debatable at this stage) in the subject matter herein and going by the relief sought this is not a purely succession matter; and is therefore not a candidate for dismissal at this preliminary stage. The present case involves the enforcement what the plaintifi insists is his interest to land sold to him by the deceased which, from his claim, is being unlawfully or irregularly used, and or occupied, by or on behalf of the defendants herein. By virtue of Article 48 of Constitution of Kenya he should not be Preliminarily denied access to Justice. For this reason I do find that the reasons advanced are not genuine grounds for a preliminary objection in this matter, at least without the plaintifi being accorded an opportunity to present his claim by adducing any evidence in any form. 5. The upshot is that this Preliminary objection is dismissed. I shall not make any award for costs at this stage, as it may send a wrong or confiicting signal at this preliminary stage. Costs shall therefore be in the cause. The plaintifi should however use this opportunity which I have accorded him by virtue of Article 48 of the Constitution to have a speedier trial herein and not be seen to be delaying this matter herein. Article 48 of the Constitution is available to both sides of a litigation, such that not any party should use it to the detriment of another. DATED, SIGNED AND DELIVERED AT HOLA THIS 13th DAY OF February, 2020 ALOYCE-PETER-NDEGE PRINCIPAL MAGISTRATE In the presence of; Plaintifi's counsel: Absent Defence counsel: Kombe Plaintifi: Present 1st Defendant: Present 2nd Defendant: Absent 3rd Defendant: Absent 4th Defendant: Present 5th Defendant: Present https://new.kenyalaw.org/akn/ke/judgment/kemc/2020/16/eng@2020-02-13 2
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