Benjamin Wafula Barasa v Public Health Officer & 23 Others [2014] KEHC 4965 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENT AND LAND CASE NO. 13 OF 2014

[FORMERLY HCC  NO. 110 OF 2012[

BENJAMIN WAFULA BARASA ……………….......….… PLAINTIFF

VERSUS

PUBLIC HEALTH OFFICER & 23 OTHERS................. DEFENDANTS

RULING

1.       The Applicants Dickson Tom Wanjala, David Nyukuri,  Francis  Wanjala, Patrick Wafula Wanjala and Ali Waziri Bakari moved  this court under Order 1 rule 1,6,8, (1-3) of  the Civil Procedure Rules seeking prayers to be enjoined as co-Plaintiffs with  Benjamin Wafula Barasa. Francis W.  Wakalikha,Patrick and  Ali Waziri are sued as Defendants no. 8, 10 and 23   respectively.

2.       The Applicants put forward 12 grounds why the orders  sought should be granted.  One of the grounds is that  they   have a similar   claim as the complainant. At  paragraph (j),  it states that the plot nos. Ndivisi/Muchi/4227, 4229, 4230,4232, 4235, 4239 and    4247 must be returned to the Applicants on behalf of their  deceased fathers. The application is also supported by the  affidavit sworn by all the     Applicants.

3.       The application is opposed by the Plaintiff on the basis that the Applicants were giving false information.  He wanted  the  Applicants (Francis & David) sued as Defendants to remain so.  The Plaintiff avers that if the Applicantshave any claims, they should file independent suits.  He  submitted further that the first Applicant lacked capacity   to address court.

4.       Mr. Ateya on his part submitted that he left it to the  Applicants to decide which side of the suit they want to be. For the record, Mr. Ateya represents part of the  Defendants who will not be affected by the orders arising  from this  application.

5.       To begin with, the 3 Applicants were sued as 8th, 10th and 23rd Defendants can only be joined as Plaintiffs if the current Plaintiff withdrew the claim he made against them. No such withdrawal has been made.  It follows therefore   that there-course open to them is to apply to amend their defence and file a counter-claim to bring forth their claims against any ofthe parties in this suit.

6.       The 1st & 2nd Applicant has not been sued by the Plaintiff. Since the Plaintiff is not happy with their joining his suit and they have also not disclosed their relationship with thePlaintiff.  It is prudent in the circumstances that they  file their separate suit to lodge their claim.

Probably after lodging such a suit, they can move the court   to  have the two suits consolidated.

7.       Consequently, I find this application as misplaced, lacking in merit and disallow it. I order that each party to bear  their own costs.

DATED, SIGNED and DELIVERED  this  22nd of  May 2014

A. OMOLLO

JUDGE.