Cherere (Suing as the administrator John Cherere Mwangi (Deceased) v Githumbi (Sued as the administrator of the Estate of Kithumbi Kichuhi (Deceased) & 2 others; Kandenge & 8 others (Intended Defendant) [2022] KEELC 15697 (KLR)

Cherere (Suing as the administrator John Cherere Mwangi (Deceased) v Githumbi (Sued as the administrator of the Estate of Kithumbi Kichuhi (Deceased) & 2 others; Kandenge & 8 others (Intended Defendant) (Environment & Land Case 21 of 2018) [2022] KEELC 15697 (KLR) (22 July 2022) (Ruling)

Neutral citation: [2022] KEELC 15697 (KLR)

Republic of Kenya

In the Environment and Land Court at Kerugoya

Environment & Land Case 21 of 2018

EC Cherono, J

July 22, 2022

Between

Tabitha Njeri Cherere (Suing as the administrator John Cherere Mwangi (Deceased)

Plaintiff

and

Gichuhi Githumbi (Sued as the administrator of the Estate of Kithumbi Kichuhi (Deceased)

1st Defendant

Patrick Charai Gichuhi

2nd Defendant

Joseph Gitari Ezekiel

3rd Defendant

and

Geodffrey K Kandenge

Intended Defendant

Justin Muthii Wachira

Intended Defendant

Joseph Irungu Nganga

Intended Defendant

Faith Wanjiku Macharia

Intended Defendant

Evans Irungu Mutungi

Intended Defendant

Peter Thaiku Muguga

Intended Defendant

Robert Munga Kariuki

Intended Defendant

Jackson M Mbuthia

Intended Defendant

Charles M Gatuura

Intended Defendant

Ruling

1. On November 12, 2021 this court delivered its judgement in favour of the plaintiff and issued the following orders;a.The registration of Gichuhi Githumbi and/or Administrators in land parcel No Mwerua/Kagio/646 and all resultant sub-divisions are hereby cancelled.b.The 3rd Defendant’s land parcel Number Mwerua/ Kagio/2732 being a portion of the resultant division of land parcel number Mwerua/Kagio/2636 be and is hereby cancelled.c.The Land Registrar, Kirinyaga County is hereby directed to rectify the register by entering the plaintiff, Tabitha Njeri Cherere as owner of land parcel number Mwerua/Kagio/2732. d.The cost of the suit shall be borne by the Defendants, jointly and severally.

2. The applicants have since filed an application dated November 15, 2021 seeking a stay of execution of the court’s judgement, enjoinment of the applicants to this suit and subsequent setting aside of the court’s judgement. The applicants claimed they are the registered owners of land parcels Mwerua/Kagio 8017, 8078, 9275, 9276, 8239, 1053, 7780, 7801 and 3393 subdivisions of Parcel No Mwerua/Kagio/646.

3. Each of the applicants filed their respective affidavits making averments how they acquired their respective parcels. It was their common contention that this court ordered the cancellation of all subdivisions and further subdivisions in Mwerua/Kagio/646 thereby affecting 100 registered owners who stand to be evicted.

4. They denied that the Respondent is in possession of any part of Mwerua/Kagio/646 and averred that her husband John Cherere Mwangi (deceased) was evicted from the same in the year 2009. That the allotment letter tendered by the plaintiff is of a different parcel of land being Mwerua/Kagio/630 and not Mwerua/Kagio/646, which the applicants are beneficiaries.

5. That cancelling subdivision of Land Parcel No Mwerua/Kagio/646 is erroneous as it is tantamount to cancelling the confirmed grant issued in Embu High Court Succession Cause No 80 of 1993 which this court has no jurisdiction over.

6. The applicant filed grounds of Opposition dated November 30, 2020 raising the following grounds;a.That the application is a sham, vexatious and the same ought to be dismissed with costs.b.That this honourable court is now functus officio.c.That the orders sought are not available to the applicant since there is nothing new that has arisen to warrant review/ setting aside of the Court’s judgement.d.That the application is fatally defective and the same ought to be dismissed with costs.

7. The Respondent also filed a Replying affidavit dated February 11, 2022. She averred that from the onset she has been in possession of Mwerua/Kagio/2732. That this Court found that he is entitled to parcel Number Mwerua/Kagio/2732 proceeded to cancel the said title and directed the title be registered in her name. That the 3rd Defendant did not appeal this Court’s decision. That the applicants herein have no interest whatsoever of the Land parcel Mwerua/Kagio/2732, none of them have claimed the same in the application.

8. The 4th Applicant filed a supplementary affidavit dated March 14, 2022. He averred that the Respondent has agreed with the applicant that she was not entitled to an Order for the cancellation of subdivisions in Mwerua/Kagio/646.

9. On February 14, 2022 the court directed the parties to canvass the application through written submissions. At the time of writing this Ruling, only the applicant had filed its submissions. The applicant restated the averments made in support of the application. They submitted that by virtue of section 24 as read with section 26 of the Land Registration Act their titles were indefeasible. That they have not been granted the right to be heard as enshrined in Article 50 of theConstitution. Section 19 of the Environment and Land Court Act, 2011 provides that this Honourable Court should be guided by the principles of natural justice.

Analysis and Determination 10. I have considered the application, replying affidavit and submissions filed. From the placed before me, I find that the issues that comment for determination are;(a)Whether the applicant ought to be enjoined as parties to the suit(b)Upon grant of prayer (a) whether the intended defendant ought to be granted leave to file their respective defence.

11. The relevant provisions on joinder of parties is order 1 rule 10 (2) of the Civil Procedure Rules the same states as follows;The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

12. In Habiba W Ramadhan & 7 others v Mary Njeri Gitla (2017) eKLR; Nairobi High Court ELC Case No 119 of 2014 the Court held as follows;“As already observed by the Court, under Order 1 Rule 10(2) the Court has discretion to order joinder of any party to a suit at any stage of the proceedings so long as the presence of that party before the Court is necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions in dispute....”

13. In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR, Mativo, J explained when an interested party ought to be enjoined in a proceeding. He stated: -“A person is legally interested in the proceedings only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is apparent that a party claiming to be enjoined in proceedings must have an interest in the pending litigation, but the interest must be legal, identifiable or demonstrate a duty”.

14. The Court has already made a declaration for the cancellation of all subdivisions in Mwerua/Kagio/646. The applicants contend that the Respondent’s only interest is in land Parcel No. Mwerua/Kagio/2732. They have a stake in the cancelled subdivisions and further subdivisions arising from land parcel No. Mwerua/Kagio/646, ie, Mwerua/Kagio/ 8077, 8078, 9257, 9276, 8239, 10537, 7800, 7801 and 3393 protected under Section 24, 25 and 26 of the Land Registration Act, 2012.

15. The applicant’s titles are as a result of a subdivision of Mwerua/Kagio/646, the same having been cancelled. The applicants were not parties to the suit. They clearly have a legal and identifiable interest in the suit herein. I therefore find it proper to have them joined as parties to the suit herein.

16. What then should be the next remedy after the joinder? The applicant herein seeks this court to set aside its judgement and grant them leave to file their respective defence. The Principles of Order 10 of the Civil Procedure Rules consequence of non-appearance, default of defence and failure to serve do not apply to these circumstances. I dare say that the only available remedy to the applicants is on review and appeal as found in Order 45 and 42 of the Civil Procedure Rules respectively. The applicant has not sought any prayers of such a nature in their application. They are however at liberty to make the same at the appropriate time.

17. The applicants also seek a stay of execution of the Court’s judgement. There is, however, no indication of the remedy/approach the applicant seeks to make at this particular juncture; it would therefore be premature to make Orders imaginative of the applicant’s steps.

18. The upshot of my analysis is that the application dated November 15, 2021 is merited only to the extent that the applicants herein are joined as defendants to this suit. Orders accordingly.

RULING READ, DELIVERED AND SIGNED IN THE OPEN COURT AT KERUGOYA THIS 22ND JULY, 2022. HON. E.C. CHERONOELC JUDGE