EVANS NJOROGE MUNGAI & 2 others v PETER JOHN KARIBA GITAHI & another [2010] KEHC 3885 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 922 of 2004

EVANS NJOROGE MUNGAI…………………1ST PLAINTIFF/APPLICANT

ROBERT GIKURA NJOROGE……………….2ND PLAINTIFF/APPLICANT

BEATRICE WANJIKU MUNIU………….…..3RD PLAINTIFF/APPLICANT

(The Administrator of the estate of the late

SAMUEL MUNIU MUNGAI (Deceased)

Rachael Kamendi Ngethe, Philomena Njoki Murichu,

Lucy Iruga Munyui & Goretti Wanjiku the Administrator of

HANNAH NJERI MUNGAI also known as Njeri Mungai

VERSUS

PETER JOHN KARIBA GITAHI………..1ST DEFENDANT/RESPONDENT

SIMON PETER MUNGAI………………..2ND DEFENDANT/RESPONDENT

R U L I N G

1.       The application before court is the Chamber Summons dated 18/06/2009 brought by Rachael Kamendi Ngethe, Philomena Njoki Murichu, Lucy Iruga Munyui and Gorette Wanjiku the administrators of Hannah Njeri Mungai alias Njeri Mungai. The four Applicants seek to be enjoined as Plaintiffs in this suit. The application is brought under Order 1 rules 10(2) and 13, Order VIA Rule 3(1) and 5 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act Chapter 21 Laws of Kenya.

2.       The application is premised on grounds that the Applicants are the sole beneficiaries and legal representatives of the estate of Hannah Njeri Mungai alias Njeri Mungai and are entitled to half (½) acre out of LR No. Kiambaa/Thimbigua/174 which parcel of land was to be shared between the Applicants’ late mother on the one hand and Njoroge Mungai and R.G. Njoroge on the other hand. The Applicants also say that it is in the interest of justice that they be enjoined as Plaintiffs in this suit.

3.       The application is also supported by affidavits sworn by Gorette Wanjiku Njoroge on the authority given and filed in court by Rachael Kamendi Ngethe, Philomena Njoki Murichu and Lucy Iruga Munyui. The deponent has annexed to her affidavit, among other documents a Limited Grant of Letters of Administration Ad Litem dated 14/04/2009 which letter is granted to the 4 Applicants herein.

4.       This suit was commenced by way of a plaint dated 27/08/2004 with only the 1st Plaintiff, Evans Njoroge Mungai as Plaintiff against Peter John Kariba Gitahi and Simon Peter Mungai over the suit property known as LR No. Kiambaa/Thimbigua/174 which was registered in the name of Gathoni Mungai who died on 14/01/1978. There have been various amendments to both the plaint and the defence culminating in the amended plaint filed on 3/04/2007 and the amendment Statement of Defence filed on 14/05/2007. The Plaintiffs prayed for judgment against the 1st and 2nd Defendants jointly and severally for:-

(a)An order that the transfer and subsequent registration of Land No. Kiambaa/Thimbigua/174 into the 1st Defendant’s name was illegal.

(b)That Land Parcel No. Kiambaa/Thimbigua/174 be registered in the name of EVANS NJOROGE MUNGAI, R.G. NJOROGE and NJERI MUNGAI each sharing ½ acre as per consent judgment in Kiambu Succession Cause No. 24 of 1980.

(bb)           A declaration that Beatrice Wanjiku Muniu is entitled to ½ a share out of the ½ acre awarded to Evans Njoroge Mungai in Kiambu Succession Cause No. 24 of 1980.

(c)Cost of suit.

(d)Any further or other relief that this Honourable Court may deem just and fair.

5.       In their Amended Statement of Defence dated 10/05/2007, the Defendants denied the Plaintiff’s claims and alleged that the suit property was transferred intervivos to the 1st Defendant by the late Gathoni Mungai in or about 1967. The Defendants asked the court to dismiss the Plaintiff’s suit.

6.       The application by the Applicants is opposed. The Defendants filed Grounds of Opposition dated 25/09/2009 in which they say that:-

1. The application is bad in law and an abuse of the court process.

2. The Applicants would best be heard by filing their own suit.

3. The matter so distinctly filed could be consolidated with the present suit later in the proceedings.

4. Joining the Applicants to this suit would only result in further complications as has been [the case] over the past especially pertaining [to] amendments of pleadings by the parties.

5. It is in the interest of justice that this application be dismissed with costs to the Defendants.

7.       At the hearing of the application, Mr. Kimani appeared for the Applicants and argued that by her order of 25/09/2008, Ang’awa J stayed all other related cases pursuant to Section 6 of Cap 21 Laws of Kenya except this suit, hence the Applicants’ application. Mr. Kimani submitted that in light that court’s order of 25/09/2008, it would be in the interests of justice to allow the application as prayed.

8.       The Plaintiffs, through learned counsel, Mr. Nduruno, did not oppose the application. The only question that now arises is whether the Applicants should be allowed to come on board in this case or whether it is better for them to file a fresh suit against the Defendants as suggested by the Defendants. Order 1 Rule 10(2) of the Civil Procedure Rules gives this court power to strike out the name of any party that is improperly joined in the suit and also to order “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.”

9.       The court has considered this application and makes the following findings:- first that all the parties herein, including the Applicants, appear to have an interest in the suit property and secondly there is an order staying all other related suits pending before court to allow this suit to proceed to hearing. In light of this courts order dated 25/09/2008, it would be a futile exercise to say that the Applicants should file a separate suit which may later on be consolidated with this suit. In my view, such a course of action would be a more costly exercise than allowing the four Applicants to come on board now. There is evidence on record that some of the parties herein, and especially the 1st Plaintiff are quite advanced in age. There is therefore an urgent need to push forward with the case so that all the parties can be heard in person.

10.     In the premises and by virtue of the provisions of Order 1 Rule 10(2) of the Civil Procedure Rules, I allow the application dated 18/06/2009 and direct that the Applicants of the said application namely Rachael Kamendi Ngethe, Philomena Njoki Murichu, Lucy Iruga Munyui and Goretti Wanjiku be and are hereby enjoined in this suit as the 4th, 5th, 6th and 7th Plaintiffs respectively.

11.     Because of the age of the parties, all parties must file and serve their amended pleadings (if any) within 30 days from the date of this ruling and complete discovery together with agreed issues within another 30 days thereafter so that the suit can be set down for hearing on a priority basis within this year 2010. Costs of this application shall be in the cause.

Orders accordingly.

Dated and Delivered at Nairobi this 20th day of January, 2010.

R.N. SITATI

JUDGE

Delivered in the presence of:-

Mr. Kimani (present)for the Applicants

Mr. Ndurumo (present) and for the 1st Plaintiff/Respondents

holding brief for M/s Ngai & Gaita for 2nd and 3rd Plaintiffs respectively

Weche – court clerk