Charity Wanjirua Ngari v David Ringera & Salome Kagwiria Gerald [2018] KEELC 1568 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC NO. 1265 OF 2015

CHARITY WANJIRUA NGARI....................................................PLAINTIFF

=VERSUS=

DAVID RINGERA..................................................................…..DEFENDANT

SALOME KAGWIRIA GERALD......PROPOSED SECOND DEFENDANT

RULING

1. This is a ruling in respect of a notice of motion dated 24th June 2016. The application seeks to enjoin a second defendant in this suit. The applicant had sued the defendant claiming that the defendant had trespassed into her property known as plot No.53 on LR No.6845/124 Mathare area (suit property). The defendant in response to an application for injunction stated that he had nothing to do with the suit property; that he knew the owner of the suit property who had even developed it.

2. It is the defendant’s response to the plaintiff’s application which made the plaintiff to file the current application in which she seeks to have the proposed second defendant enjoined in this suit as a second defendant. The plaintiff alleges that it is the defendant who fraudulently transferred the suit property to the proposed second defendant and that the proposed second defendant has generated an account for the suit property where she is paying rates in respect of the suit property.

3. The defendant has opposed the plaintiff’s application based on a replying affidavit filed on 8th July 2016. The defendant contends that it is unnecessary to enjoin the proposed second defendant in this suit; that if the plaintiff sued a wrong party, she should withdraw her suit against him and that he is not related to the proposed second defendant as alleged by the plaintiff.

4. The proposed second defendant has opposed the plaintiff’s application based on a replying affidavit sworn on 16th November 2017. The proposed second defendant states that she has a plot bearing the same registration number as the suit property but that her plot is in Embakassi area which is in a different Geographical location from the suit property. She further contends that her intended joinder in this suit is an abuse of the process of court. She has been on her plot which she developed 15 years ago and has lived in Embakassi area for over 27 years.

5. I have considered the plaintiff’s application as well as the opposition to the same by the defendant and the proposed second defendant. I have also considered the submissions filed by the parties herein. The issue for determination in this application is whether the proposed second defendant should be enjoined in this suit. The principles which courts apply in deciding whether to enjoin a party have been stated in a number of cases. The most important of it all is whether the joinder of such a party will assist the court to effectually and completely adjudicate the issues in controversy. The other principle is whether there is a common thread which cuts across the party to be enjoined and those already in the suit which will enable the court to deal with the matter in the same case so as to save litigants from filing multiple suits.

6. In the instant case, the defendant has sworn an affidavit stating that he knows the owner of the suit property and even went ahead to annext photographs of a building on the suit property. The plaintiff has alleged that it is the defendant who transferred the suit property to the proposed second defendant who is his relative. The plaintiff has annexed rates payment documents from the County Government of Nairobi which shows that plot No.53 on LR No.6845/124 is in the name of the proposed second defendant. The proposed second defendant admits that she has a plot bearing the same number as the suit property only that her plot is in Embakassi sub-county.

7. From what has emerged, it is clear that the proposed second defendant is a necessary party to this suit. The court cannot effectually and completely adjudicate on this dispute without her presence in the suit. I therefore find that the proposed second defendant is a necessary party. I allow the application dated 24th June 2016 . The Plaint should be amended within 14 days and she be accordingly served with pleadings to enable her file her defence in accordance with the Civil Procedure Rules.

It is so ordered.

Dated, Signed and delivered at Nairobion this 26thday of July 2018.

E.O.OBAGA

JUDGE

In the absence of:-

Mr Muriuki for Defendant

Mr Leparmarai for Mr Kimamo for Plaintiff

Mr Muriuki for Mr Kabaka for proposed second defendant

Court Assistant: Hilda

E.O.OBAGA

JUDGE