7th & 8th Defendants' Application
7th & 8th Defendants' Application
NOTICE OF MOTION
(Under ORDER2 Rule 15(1} {a},{b},{c) & {d}, ORDER36 Rule 1 {1} {b}, ORDER 40
Rule 2 & Rule 411} & (2) of the Civil Procedure Rules, ZOJO, and SECTION 3A of the
Civil Procedure Act and all other enabling 12rovisions of the law)
3. THAT once the plaintiffs suit is struck out, judgment be entered for the ih &
s" defendants as prayed in the Counter Claim dated and filed on 11thApril,
2023 with costs of this application and the entire suit being awarded to the z"
& s" defendants.
5. THAT in any event costs of this application be awarded to the ih & gth
Defendants.
a) THAT the Plaintiffs' suit as filed against the ih & gth Defendants discloses no
reasonable cause of action against them.
b) THAT the plaintiffs have pleaded under paragraph 4 of their Amended Plaint
that as recently as two months ago the Defendants invaded the parcel LR.
NO. 8669/3 MUTHERA FARM in MAU NAROK belonging to the Estate of
the Late Mbiyu Koinange (deceased).
c) THAT again, under paragraph 4C & 40 of the Amended Plaint the plaintiffs
have pleaded that in the Judgement dated ih May, 2020 given in Nairobi HC
Succession Cause No. 527 of 1981 RE ESTATE OF MBIYU KOINANGE
(deceased), the High Court set-apart 800 Acres of the suit parcel LR. NO.
8669/3 MUTHERA FARM in MAU NAROK for the same to be sold to pay the
debts of the Estate and further that the defendants together with other
Email: k.n&[email protected] bile: No. 07~~ois2:S' .·. '_'· .: ,F~get2.
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outsiders have taken over the 800 Acres with other parcels of land belonging
to different beneficiaries and thus the defendants have denied the
beneficiaries of the said Estate income from the 800 acres and occupation of
their rightful inheritance.
d) THAT on the part of the ih & s" defendants, they have denied that they have
invaded and/or trespassed into the suit parcel L.R. NO. 8669/3 MUTHERA
FARM in MAU NAROK as alleged and further the ih & s" Defendants have
declared in their Defence and Counter Claim that they have every right to be
on the suit parcel by virtue of beneficiary interests in relation to 800 Acres of
the parcel Title Number I.R. 43067 being LR. NO. 8669/3 in MAU NAROK.
NAKURU DISTRICT delineated on Survey Plan Number 56590 registered in
the names of their late father KIKENYI OLE MPOE (Deceased) as per the
Certificate of Title dated 1st March, 1988.
e) THAT the ih & gth Defendants have stated in their Defence and Counter Claim
that their late father KIKENYI OLE MPOE (Deceased) passed away on 14th
October, 2014 and that they are now holders of a Limited Grant Ad - Litem in
respect of the Estate of Kikenyi Ole Mpoe (Deceased) which grant was issued
on 23rd March, 2023 in Nakuru H.C. P&A Cause No. E046 of 2023.
f) THAT the th & gth Defendants have stipulated under paragraph 13 of their
Defence and Counter Claim that the 800 Acres of the parcel registered as
Title Number I.R. 43067 being L.R. NO. 8669/3 in MAU NAROK,
were extracted from the parent title GRANT NO. JR. 14607 being LR. NO.
8669/3 in MAU NAROK measuring 4,296 Acres and therefore the 800 Acres
where the 7th & gth Defendants have been residing from the time of birth are
within the said parent suit parcel GRANT NO. IR. 14607 being LR. NO. 8669/3
in MAU NAROK measuring 4,296 Acres of which the actual acreage of the
parent parcel could now be approximately 3,496 Acres.
g) THAT the ih & gth Defendants indicate that the plaintiffs have no legitimate
claim over the suit parcel LR. NO. 8669/3 MUTHERA FARM in MAU NAROK
measuring 4,296 Acres since the same is actually registered in the names of
Impulse Developers Company Limited after transfer of the parcel to the
company on zz'" May, 2006 by The Settlement Fund Trustees as per the
certified Land Records issued on gth October, 2015.
h) THAT the Plaintiffs have not pleaded that Impulse Developers Company
Limited is a company owned by the Estate of the Late Mbiyu Koinange so
that the plaintiffs in their representative capacity of the said Estate are legally
mandated to agitate over rights of ownership of the suit parcel L.R. NO.
Email: k,n&[email protected]
8669/3 MUTHERA FARM in MAU NAROK measuring 4,296 Acres on behalf of
Impulse Developers Company Limited.
i) THAT indeed, the Plaintiffs' initial plaint dated 5th November, 2020 filed in
court on 6th November, 2020 has attached an extract copy of the title for the
suit parcel L.R. NO. 8669/3 MUTHERA FARM in MAU NAROK and which
extract copy of title exhibits that the suit parcel is owned by Impulse
Developers Company Limited.
m) THAT the ih & gth Defendants contend that together with their extended
family members they have openly and without interruption been cultivating,
grazing livestock and leasing out 1,500 Acres of the parent suit parcel
GRANT NO. IR. 14607 being L.R. NO. 8669/3 in MAU NAROK measuring
4,296 Acres for over a period of 12 years from the time The Settlement Fund
Trustees transferred the said parent suit parcel to the names of Impulse
Developers Company Limited on 22nd May, 2006 thus it is imperative that the
current legitimate owner of the suit parcel is identified for a claim of adverse
possession to arise.
n) THAT the Plaintiffs' suit against the ih & s" Defendants is grossly
incompetent and an abuse of the court process.
o) THAT the ih & gth Defendants have a prima facie case warranting issuance of
orders of temporary injunction as an alternative prayer against the plaintiffs
from interference with the parcel measuring 800 Acres of property Title
Email: k.n,:[email protected]
Number I.R. 43067 being LR. NO. 8669/3 in MAU NAROK belonging to their
late father KIKENVI OLE MPOE (Deceased)
p) THAT for a suit to be heard, it must have substance and there must exist a
bonafide cause of action arising from legal rights that can be protected and
adjudicated upon.
~
KANYI NGURE & COMPANY
ADVOCATES FOR THE 718 & gTH DEFENDANTS
DRAWN & FILED BY:-
KANYI NGURE & CO.,
ADV ATES,
PLUT HSE, 1 sr FLR- RM 4E,
AL NYA'ITAAVENUE,
AB S MASACCO,
P.O. BOX 1 731-20100,
NAKURU. '-
(OUR REF:CV/KN /ELC/ 1 /ZOZ3)
Email:[email protected]
OfficeAdmin:-0700-802528 I 0721-324619
GEOFFREY OTIENO & CO, KARANJA- MBUGUA & COMPANY KANGETHE WAITERE &CO ADVOCATES,
ADVOCATES, ADVOCATES UTALII HOUSE,15r FLOOR
TAMOH PLAZA 2ND FLOOR, SPIKES BUILDING,2ND FLR RM 28 NORTH WING, UTALII STREET,
P.O BOX 13944-20100, P. BOX 7704-00100
P.O. BOX 3387-20100,
NAKURU. NAIROBI.
NAKURU.
Email: [email protected] Email: [email protected]
E-mail: [email protected] Tel: No. 0712490767 fi::~er!;[email protected]
(Advocates For The 9th Delendantl (Advocates For The 1st Plaintiff.l (Advocates For The 2nd Plaintiftl
( If any party served does not appear at the time and place mentioned such orders will be made and
proceedings taken as the court may think deem iust and expedient)
·,·· ..
SUPPORTING AFFIDAVIT
WE, JOSPHAT MUNKE MPOE holder of I.D. NO. 12980932 AND JOSEPH KAKORE
OLE MPOE holder of 1.0. NO. 8810551 do hereby make oath and solemnly state as
follows:-
1. THAT we are the ih & gth Defendant/Applicants herein and hence competent
to swear this affidavit.
2. THAT we swear this affidavit in support of the Notice of Motion herein for
striking out of the suit plaintiffs suit and entering judgement as per our
Defence and Counter Claim dated 11th April, 2023.
4. THAT the plaintiffs have pleaded under paragraph 4 of their Amended Plaint
that as recently as two months ago the Defendants invaded the parcel L.R.
NO. 8669/3 MUTHERA FARM in MAU NAROK belonging to the Estate of the
Late Mbiyu Koinange (deceased).
6. THAT the 800 Acres of the parcel registered as Title Number I.R. 43067 being
LR. NO. 8669/3 in MAU NAROK. where we have been residing from the time
of birth are actually within the parent parcel and were extracted from the
parent suit title GRANT NO. IR. 14607 being LR. NO. 8669/3 in MAU NAROK
measuring 4,296 Acres and thereon the 800 Acres were registered into the
names our late father KIKENYI OLE MPOE {Deceased) who passed away on
14th October, 2014.
8. THAT the parcel Title Number I.R. 43067 being LR. NO. 8669/3 in MAU
NAROK. NAKURU DISTRICT delineated on Survey Plan Number 56590
measuring 800 Acres was allocated to our late father KIKENYI OLE
MPOE {Deceased) upon application for allocation vide the letter dated is"
December, 1987 and thereafter a letter of offer for the 800 acres was issued
by The Settlement Fund Trustees dated 11th January, 1988 and eventually a
Memorandum of Registration of Transfer for the 800 Acres was endorsed
on s" May, 1988 for a total consideration price of Kshs. 400,000/= i.e. at a
price of Kshs. 500/= per Acre at the time. (Annexed hereto is a copy
of the Application letter, Letter of offer and the Memorandum
of Transfer marked as "J.M. 2/aj, 2(bj and 2(cj respectively'].
9. THAT the Certificate of Title for the parcel Title Number I.R. 43067 being
LR. NO. 8669/3 in MAU NAROK. NAKURU DISTRICT delineated on Survey
Plan Number 56590 measuring 800 Acres was issued to our late
father KIKENYI OLE MPOE {Deceased) while dated 1st March, 1988.
Email: [email protected]
(Annexed hereto is a certified copy of the said Certificate of
title attached together with the Survey Plan Number 56590
marked as "'J.M. 3/a/ and 3/b/ respective1y7.
10.THAT on our part, we deny that we have invaded and/or trespassed into the
suit parcel L.R. NO. 8669/3 MUTHERA FARM in MAU NAROK as alleged and
further we have already declared in our Defence and Counter Claim that we
have every right to be on the suit parcel by virtue of beneficiary interests in
relation to 800 Acres of the parcel Title Number I.R. 43067 being L.R. NO.
8669/3 in MAU NAROK. NAKURU DISTRICT delineated on Survey Plan
Number 56590 registered in the names of our late father KIKENYI OLE MPOE
(Deceased).
11.THAT we hereby indicate that the plaintiffs have no legitimate claim over the
suit parcel L.R. NO. 8669/3 MUTHERA FARM in MAU NAROK measuring
4,296 Acres since the same is actually registered in the names of Impulse
Developers Company Limited after transfer of the parcel to the company on
22"d May, 2006 by The Settlement Fund Trustees as per the certified Land
Records issued on s" October, 2015. (Annexed hereto is a certified
copy of the Certificate of title for the suit parcel issued on 8111
October, 2015 marked as ''J.M. 4'7.
12.THAT the Plaintiffs have not pleaded that Impulse Developers Company
Limited is a company owned by the Estate of the Late Mbiyu Koinange so
that the plaintiffs in their representative capacity of the said Estate are
legally mandated to agitate over rights of ownership of the suit parcel L.R.
NO. 8669/3 MUTHERA FARM in MAU NAROK measuring 4,296 Acres on
behalf of Impulse Developers Company Limited.
13.THAT indeed, the Plaintiffs' initial plaint dated 5th November, 2020 filed in
court on 6th November, 2020 has attached an extract copy of the title for the
suit parcel LR. NO. 8669/3 MUTHERA FARM in MAU NAROK and which
extract copy of title exhibits that the suit parcel is owned by Impulse
Developers Company Limited.
Email: k,m:[email protected]
15.THAT basically, the Plaintiffs are unlawfully claiming ownership interests of
the suit parcel LR. NO. 8669/3 MUTHERA FARM in MAU NAROK measuring
4,296 Acres without exhibiting any documents of ownership relating to the
late MBIVU KOINANGE (deceased).
17.THAT we hereby contend that together with our extended family members
we have openly and without interruption been cultivating, grazing livestock
and leasing out 1,500 Acres of the parent suit parcel GRANT NO. IR.
14607 being L.R. NO. 8669/3 in MAU NAROK measuring 4,296 Acres for over
a period of 12 years from the time The Settlement Fund Trustees transferred
the said parent suit parcel to the names of Impulse Developers Company
Limited on 22"d May, 2006 thus it is imperative that the current legitimate
owner of the suit parcel is identified for a claim of adverse possession to
arise.
18.THAT the Plaintiffs' suit against us is grossly incompetent and an abuse of the
court process.
20.THAT for a suit to be heard, it must have substance and there must exist a
bonafide cause of action arising from legal rights that can be protected and
adjudicated upon.
Email: [email protected]
23.THAT what is deponed to hereinabove is true and correct to the best of our
knowledge, information and belief except where the source of such
information is given.
GEOFFREY OTIENO & CO, KARANJA- MBUGUA & COMPANY KANG ETHE WAITERE &CO ADVOCATES,
ADVOCATES, ADVOCATES UTALII HOUSE,lST FLOOR
TAMOH PLAZA 2No FLOOR, SPIKES BUILDING,2No FLR RM 2B NORTH WING, UTALII STREET,
P.O BOX 13944-20100, P. BOX 7704-00100
P.O. BOX 3387-20100,
NAKURU. NAIROBI.
NAKURU.
Email: [email protected] Email: [email protected]
E-mail: [email protected] Tel: No. 0712490767 /[email protected]
(Advocates For The 9th De[endantl (Advocates For The t" Plaintiffl (Advocates For The 2"d Plaintitf.l
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAKU
PROBATE AND ADMINISTRATION
BE it known that letters of administration ad litem of all the estate of the above-named KIKENYI OLE
MPOE who died domiciled in Kenya on the 14TH OCTOBER, 2014 which devolves to and vests in his
Personal Representatives but limited to the purposes only for filing suit, and until further representation
were granted by this Court to JOSPHAT MUNKE MPOE and JOSEPH KAKORE OLE MPOE they
having undertaken to administer such estate according to Law (limited as aforesaid) and until further
representation be granted and render a true and just account thereof whenever required by law to do.
ISSUED by the High Court through the registry at NAKURU this 2JRD day of MARCH, 2023.
OHOCHIS.M.
THE HIGH COURT
11
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RE: APPLICATION FOR ALLOCATION OF LANO L.Ro 8669/3 ·\v ~ 1·,
A...~D 8669/4 RES.l'ECT.IVELY ,-..:1.
(_.,
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We the above mentioned kind1y request your Excellenee the,:,
President of' the Republic of Kenya that you allocate us th~~-....:.:···
above l.and situate in Mau.~ar•k• Ne.kuru Dist,ricto -····-
THE DIRECTOR
.SETTLEMENT FUND TRUST
P. 0 •. BOX ~01*.50
NAIROBI
13
MINISTRY OF LANDS AND SETTl..EMENT
LANDADJL:DICATION AND
'!";·k,~,.uns ··1 v,n, .r:" \ ii1ob1
·:~! ;,11,,ue: ~airohi ;;i;oso SETTLEMENT D~P.'\[ffMt:·rr
P.O Box 30'.!97
~;;t~:. ~:~§r.e'i.ti~1)10.20.
111
und date
NAIR OB!
DEAR Sir/M;:;.d;,m,
The Government, through the Sttl:miant Fund Trustees of Post Office Box Number
30449, Nairobi, u body corporate established under Section 167 of the Agriculture
Act (Cap .318) hexeby offers you the above plot of ~pproximo.tely 800 Ha. at M.zu
· Narok in NAKURU DISTRICT, The land :J.s 'Valued Bt Ksh. 500 /= per acr e ,
In pursuant . thernto , p.Laaae not;e the t you are required to report to the Diat.ric.t Land
Adjudic~tion end Settl~mcnt Officer, NAKURU DISTRICT so that you arc shown the
plot boundar teo and be issued with a lotter confirming this befor o document; ..,.~ion~
Please make cr r angement.s to pay the totl:" 1 · va.Iue of land to enab Le rt1gistratiou j ) //
r.nd Lseuance of Title to you. i. ( (', · ~}
f ai thfuJ..ly,
This Is the oxhlblt mar1<ed .... ~1- ~-
rnfoo~ l'1,Alltt :11m1ixn~tt}'IC1vi1('0ocw11ou. /}~ t'
of- us/#lrl--r~d-{)..!'."7!4.. ftt.v f7 C»: .
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sworn/l'Jr.ctar11<1 bt1foni me th1s. .• 1
/} fl 1 .
ctay ot-rY1fl#-!:l:f-.2J1..lP14..,11•• l..YD...f}:fA,I~ •
DIRECTOR OF LAND CTUDICATION AND SETTLEMENT
FOR AND ON BEHALF OF SETTLEMENT FUND TRUSTEES
c.c
Permanent Secretary, The District Commissioner
Ministry of Lands, P.6. Box 81,
P.O. BOX 30450, NAKURU.
NAIROBI.
14
REPUBLIC OF KENYA
ztt
Serial No · . DEPARTMENT OF LANDS
LAND TITLES REGISTRY
To:
THE CoMMTSSIONBR OF LANDS (RECORDS BRANCH).
THE COMMISSIONER OF LANDS (VALUATION omce).
THE COMMISSIONER OF LANDS (LAND RENTS).
NAlROBVM~J', frl,
THE COMMISSIONER OF INCOME TAX.
THE CITY VALUER. NAIROBI. .
. THE MANAGING DIRECTOR, KENYA RAILWAYS.
. f ~h:~·:~~;~~~C.~°.' ~: : :,::y~:,:·:::::iaLZ.~/
D . fD 11 5. l ~B.~ . ,g,C%~~1
roflur•iil t:,..~ 1~''A~.!J.l!:XfJtl1W11l~vit/.
ate O
Transferor
ocum;~~~-TLB.NiiNT FUJqD-. TRUST
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Tr ansf1eree KIKENYI OLE iVIPOE ,. - c;·. ~1ii.il~shi'i~i-·1~r'o~tt~~'·
. .. ··:···· ·: •.. /
•••• .. ,,,, o,..-.,-«u•·••••·-•••-,, .. ,.,,.,,,uo,,o••••••u••••••••••••••"''"'''''''''''''' .. ''' u, ...o•-u••••-•-••o ... uu,00,,,,,,0,,,,,,,,,,,,,,,,,,, .. .,.,,,,,,,,,,,,._, ....,,,,,,,,.,,,,.,u,,,,uu,,uoo,,,o,oo,o,,ooo"•••••••H••••
0,,,
~~~a::;~~:~~z~iQ~~===-=~=:=~=~~====~===-==:=~: =-~~==~·;;.-=~=:.
Presented by : .:. : : _ .., , . ,....................... .
ESTHER KIIGE . .
.......... " . for Registrar of Titles. ·
Land Register , •
Return of Grants
Files
Cards
RECORD DRAUGH'fSMAN
VALUATION OFFICE . ••
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REPUBUC
THE REGISTRATION
OF KENYA
OF TI'ILES ACT
(Chapter 281)
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) '~ Z 1 HEREBY CERTIFY
~~,C~~,~~
that JCIKENYI OIE MPO~
TITLE
: ... < ~
I~~z
· Z of POST OFFICE '30X NUMBER 757 NAKURCJ
j ~ i::.t.:1 J 1:4607/6
E- ~ I'in the Republic of Kenya pursuant to a Transfer registered as Number I.R. IS ~now the
~ U registered proprietor{s) as owner(s) for an estate in fee simple
~o
~o of ALL that piece of land situate in MA :1 NAROK
(Original Number
SUBJECT however· to the Act Special Conditions Encumbrances and other matters
specified in the Memorandum hereunder written
IN WnNESs whereof I have hereunto set my hand and seal this first
MEMORANDUM
)..AND TITUlS R~C.ISTRY-NAltl.OIJl.KENYA
Rf:OISTicAT,O:t OF TITLES ACT
REG!STE~::D ;..s l\u. LR .. Y7.3. Qf7. { /
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