Catherie Naismoi Kesang v Joash Nyamache Ongweso & District Land Registrar –Ngong [2022] KEELC 591 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC SUIT NO. 113 OF 2015

CATHERIE NAISMOI KESANG..........................................................PLAINTIFF/RESPONDENT

-VERSUS-

JOASH NYAMACHE ONGWESO..............................................1ST DEFENDANT/ APPLICANT

THE DISTRICT LAND REGISTRAR –NGONG....................2ND DEFENDANT/RESPONDENT

RULING

(In respect of the Notice of Motion Application dated 23rd November, 2021 under Order 1 Rule 10(2) and 14 of the Civil Procedure Rules)

BACKGROUND

1. This Ruling is in respect of the application dated 23rd November, 2021. The said application is brought by the 1st Defendant pursuant to provisions of Order 1 Rule 10 (2) and 14of the Civil Procedure Rules and sections 3Aof the Civil Procedure Act. The 1st Defendant/Applicant seeks to join Teresia Kasanga and Christine Stricker in this matter as the 3rd and 4th Defendants respectively.

2. The application is based on the grounds set out on the face of the Notice of Motion and is further supported by the affidavit of Joash Nyamache Ongweso, the 1st Defendant sworn on the 23rd November, 2021.

3. The application is opposed by the Plaintiff through her Replying Affidavit sworn on the 14th December, 2021.

4. The background of the Application is that sometimes in early 2011, the 1st Defendant entered into a Sale Agreement with the intended 3rd Defendant who presented herself to the 1st Defendant as the Plaintiff herein. The subject of the agreement was Plot Number Ngong/Ngong/29225. An official search at the Kajiado Lands Registry showed that Catherine Naisianol Kasanga was indeed the registered owner of the subject land. The 1st Defendant entered into the agreement in the belief that she was dealing with the Plaintiff.

5. That upon completion of the agreement, the title was transferred into the 1st Defendant’s name, but it later turned out that the land which the 3rd intended Defendant sold to the 1st Defendant, was actually owned by Christine Sticker, the 4th intended Defendant. Indeed Teresia Kasanga, the 3rd intended Defendant who had purported to be Catherine Naisianol Kasanga, the Plaintiff herein, is her sister.

6. The 1st Defendant therefore argues that it is necessary to join the two defendants in this case.

7. The Plaintiff opposes the Application on the basis that the application is being filed late in the day with the aim of the delaying the hearing. Further that the alleged collusion between the Plaintiff and her sister is an afterthought as no complaint has been filed with the necessary agencies for investigations.

8. She further alleged that the illegal conversion of the property was done in the year 2011 while she was not in Kenya and therefore would not have personally attended to the transaction. The Plaintiff contends at Paragraph 13 that it is infact the 1st Defendant and the said Teresia Kasanga who colluded to illegally convert the property.

9. The Plaintiff alleges that the 1st Defendant is not a purchaser for value without notice having failed to undertake due diligence.

10. The Plaintiff further raised a Preliminary Objection dated the 8th December, 2021 in further response to the Application.

PRELIMINARY OBJECTION

11. The Preliminary Objection is premised on the grounds that the Application is fatally defective and bad in law. Further that the Defendant is not entitled in law to enjoin co-defendants in a suit but only to issue a third party notice.

COURT’S DIRECTION

12. The Court directed that the parties canvass the Application as well as the Preliminary Objection by way of written submissions. Both parties complied with the directions and filed their respective submissions.

ISSUES FOR DETERMINATION

13. Having considered the application and the rival submissions by the parties herein, the issues for determination in this Court’s opinion are as follows;-

a. Whether the objection meets the threshold for a preliminary objection.

b. Whether the Intended 3rd and 4th Defendants may properly be joined as necessary parties under Order 1 Rule 10 (2) of the Civil Procedure Rules

ANALYSIS AND DETERMINATION

A. Whether the objection meets the threshold for a preliminary objection

14. The threshold of a valid preliminary objection was set out by the Court of Appeal in Mukhisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 in the following terms:

“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”

15. Applying the foregoing binding precedent, I find that grounds raised in the objection are pure points of law that are capable of disposing of the impugned application in limineif successfully argued.

B.  Whether the Intended 3rd and 4th Defendants may properly be joined as necessary parties under Order 1 Rule 10 (2) of the Civil Procedure Rules

16. I agree with counsel for the Applicant’s submissions that the principles applicable to an application for joinder are as stated by the Court of Appeal in JMK v MWM & Another [2015] eKLR. The Court of Appeal stated that:

“Order 1 Rule (10) (2)of the Civil Procedure Rules empowers the court, at any stage of theproceedings, upon application by either party or suo motu, to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party. Commenting on this provision, the learned authors of Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 P. 887), state that:

“The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.”

17. In the case ofCENTRAL KENYA LTD. V. TRUST BANK & 4 OTHERS, CA NO. 222 OF 1998, as relied on in the case ofTemple Point Resort Limited v Accredo A G & 5 others [2018] eKLRwhile affirming that the guiding principle in amendment of pleadings and joinder of parties the court stated that:

“All amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.”

Further that, the power of "…….the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage.”

18. Turning back to the instant application, the 1st Defendant alleges that he entered into a Sale Agreement with the intended 3rd Defendant who presented herself to him as the Plaintiff herein resulting in the sale of Plot Number Ngong/Ngong/29225. That upon completion of the transfer documents and the land transferred into the 1st Defendant’s name, it emerged that the land which the 3rd Intended Defendant sold to the 1st Defendant, which he has developed, was actually owned by Christine Sticker, the 4th Intended Defendant.

19. Although the Plaintiff has opposed the Application, she states in her reply that the 1st Defendant colluded with her sister, the 3rd proposed Defendant to transfer the suit property. Further, in the Originating Summons, amongst the prayers sought by the Plaintiff include a declaration that the entry on the Title abstract of land parcel No. Ngong/ Ngong/29225 in the name of the 1st Defendant was irregular, fraudulent and illegal ab initio.

20. Evidently, for this court to make such a declaration, it must determine how the suit property was first transferred to the 1st Defendant. This can only be done justly if the proposed 3rd Defendant, who allegedly sold and transferred the land to the 1st Defendant is joined in these proceedings to shed more light.

21. As for the proposed 4th Defendant, the land which the 1st Defendant has developed is registered in her name. Definitely, she is, or I likely to be affected by the proceedings in this suit.

22. The court therefore allows the Application by the 1st Defendant dated 23rd November 2021 but in the following terms:-

A. Teresia Kasangaand Christine Stickershall be joined into the proceedings as the 1st and 2nd interested parties respectively.

B. The 1st Defendant/Applicant shall accordingly serveTeresia Kasangaand Christine Sticker with all the proceedings in this matter and this order issued by this court within the next 21 days.

C. The 1st and 2nd interested parties shall be at liberty to file and serve their pleadings appropriately as they deem fit within 14 days after service.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF MARCH, 2022

M.D. MWANGI

JUDGE

In the Virtual Presence of:-

Mr Fred for the Plaintiff

Mr Omanga for the 1st Defendant/Applicant

None appearance for the 2nd Defendant

Court Assistant: Hilda

M.D. MWANGI

JUDGE