REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NYERI
CIVIL APPEAL NO 79 OF 2019
EVANGELINE KANYUA
MWIANDI……………………………..........................APPELLANT
VERSUS
GILBERT KATHENYA MUKUNGI...…...………………………….…..
……….RESPONDENT
AND
KINYUA GIDEON MWIANDI……………………………………….
…………….APPLICANT
REPLYING AFFIDAVIT TO THE APPLICATION DATED 11TH
SEPTEMBER, 2024.
I, GILBERT KATHENYA MUKUNGI of P.O. BOX 10-60401, CHOGORIA
within the Republic of Kenya do hereby make oath and state as follows;-
1. THAT I am the Respondent in this matter and thus competent to
swear this affidavit in opposition to the application dated 11/09/2024.
2. THAT my advocates on record M/S MAITAI RIMITA & CO.
ADVOCATES have informed me which information I believe to be
correct that the said application (Notice of Motion) together with the
supporting affidavit annexed therein is a waste of court’s valuable
time, an abuse of the court process and in any event spurious and
unmeritorious hence the same ought to be struck out forthwith.
3. THAT to say the least the said application is meant to frustrates the
realization of the judgment and decree which was delivered on
23/10/2018 in the Environment and Land Court (ELC No. 89 of 2017)
by (P.M NJOROGE, J) siting at Chuka.
4. THAT this application has brought up the same issues that were in
the applicant’s application dated 19/04/2024 which was dismissed on
07/06/2024 on the grounds that the annexed grant was not helpful to
the applicant at all and that the grant needed was one in respect of
his late mother and not his father who is not a party to this suit.
5. THAT it is not in doubt that the applicant’s father GIDEON MWIANDI
ITANGI was the original defendant in the Environment and Land
Court (ELC No. 89 of 2017) who passed on during the pendency of the
said suit in 8/10/1997 to wit his wife one EVANGELINE KANYUA
MWIANDI was substituted thereon as the Legal Representative of the
Estate of her husband to proceed with the matter; whose judgment
was in the Respondents favour.
6. THAT one EVANGELINE KANYUA MWIANDI appealed the said
judgment but passed on the 13th of April 2021 and was not been
substituted to wit the Appellate Court held on 06/11/2023 that the suit
had abated under rule 102 of the Appellate Court Rules.
7. THAT it therefore goes without saying that the next recourse for the
applicant herein was to substitute his mother who was the appellant
herein and the Legal Representative of the Estate of her husband and
not seek to be a Legal Representative of the Estate of his father as the
same amounts to circumventing the law to cater for his selfish needs
which should not be tolerated.
8. THAT needless to say, the decree in Environment and Land Court
(ELC No. 89 of 2017) has been fully implemented and that the parcels
of land L.R NO. MWIMBI/N.MAUMANGO/943 and 516 does not exist
as alleged by the applicant.
9. THAT L.R NO. MWIMBI/N.MAUMANGO/943 was subdivided into L.R
NO. MWIMBI/N.MAUMANGO/2465 and 2466; to wit I took 2465 and
now 2466 is what belongs to the applicant’s father’s estate. (Annexed
is a copy of the register marked ‘GKM1’).
10. THAT L.R NO. MWIMBI/N.MAUMANGO/516 was subdivided
into L.R NO. MWIMBI/N.MAUMANGO/2463 and 2464; to wit I took
2463 and now 2464 is what belongs to the applicant’s father’s estate.
(Annexed is a copy of the register marked ‘GKM2’)
11. THAT there is no mistake/error on the face of the record with
regards to the findings of the Honourable Judge.
12. THAT be it as it may the applicant’s advocate has not proffered
any viable explanation as to why she did not file an application for
substitution of the Appellant within the stipulated time as per the law.
13. THAT the Application which ought to have been made to
substitute the appellant was made after inordinate delay having in
mind that the deceased passed on the 13th of April 2021 and the
application was done on 19th April, 2024; approximately 3 years which
delay has not been explained; to wit it was dismissed and now the
applicant and his counsel want to save their skin by trying dubious
ways and means to have the said orders for dismissal reviewed or set
aside; the appeal revived and the applicant to substitute the appellant;
to wit they have no grounds at all.
14. THAT the Applicant herein seemed and still seem to be
engaging in tactics that were and still are meant to frustrate the
Respondent’s case by ensuring that the case fails to come to an end.
15. THAT the suit has taken over 20 years to be conclude due to
the back handed antics by the deceased Appellants and the Applicant
herein and therefore undeserving of the exercise of the court’s
judicial discretion to revive the Appeal or set aside the orders for
dismissal of their application dated 19/04/2024.
16. THAT the actions of the applicant and his advocate denote the
abuse of court process and wastage of this Honourable Court’s
precious time.
17. THAT the applicant’s advocate has not given this Honourable
Court any factual cause to warrant its exercise of judicial discretion
revive the Appeal.
18. THAT the application if allowed will be prejudicial to me herein
as it is taking me as a successful litigant into a circular expedition
which is turning this legal process into a theatrical absurdity and is
already proving costly to me.
19. THAT the judgment was not delivered in vain otherwise justice
delayed is justice denied.
20. THAT the instant application is defective, bad in law and the
same should be dismissed with costs to the respondent.
21. THAT what is deponed to herein is true to the best of my
knowledge, information and belief.
SWORN AT MERU BY THE SAID
GILBERT KATHENYA MUKUNGI :::::::::::::::::::::::::::::::::::::
`DEPONENT
This...................day of.......................2024
BEFORE ME
COMMISSIONER FOR OATHS
DRAWN & FILED BY:
MAITAI RIMITA & CO
ADVOCATES,
STANDARD BANK BUILDING,
MOI AVENUE
P. O. BOX 3151-60200
MERU.
TO BE SERVED UPON:-
M/S UDALANG’ & MWITI ASSOCIATES,
ADVOCATES,
P.O BOX 21694-00100.
NAIROBI.
Email; [email protected]
