Festus Kioko Kingoo v Tanathi Water Services Board & National Land Commission [2018] KEELC 3436 (KLR)

REPUBLIC OF  KENYA

IN THE  ENVIRONMENT   AND LAND COURT  AT MAKUENI

ELC MISC.  50 /2017

FESTUS KIOKO KINGOO....................................................APPLICANT

VERSUS

TANATHI WATER SERVICES BOARD...................1ST RESPONDENT

NATIONAL LAND COMMISSION..........................2ND RESPONDENT

RULING

1)  There  is before  me a notice of motion  application expressed to be brought   under section 1A, 1B and 1C of the Civil Procedure Act, order 1 Rule  10(2)  of the Civil Procedure Rules for orders:-

1.  Spent

2. That the applicant   herein  be added as a defendant  in this suit  and be granted leave to put in her defence, and defend the suit on merit.

3. That costs of the application be provided for.

2) The application  is predicated on the grounds on its face and is supported by the affidavit of Agnes Mwikali Kioko sworn  at Machakos  on the 18th January, 2018 and filed in court on even  date together with the application.

3) The application is opposed by Festus King’oo Kioko, the plaintiff/applicant vide his replying affidavit sworn  at Machakos on the 23rd January, 2018 and filed in court on the 26th January, 2018.

4) On the 18th January, 2018 the court directed that the  application be disposed off by way of written submissions.  The applicant filed  her submissions on the 28th February, 2018 while the respondent filed his  on the 8th March, 2018.

5) The applicant’s counsel submissions are that the applicant is a necessary and proper party to  this suit as the orders of the court will have a direct effort on her interests  and as such, she  ought to be enjoined as a defendant.

6) The counsel went on  to  correctly submit that joining  a party to a suit is a matter of court’s discretion.

7)  The counsel cited Order 1 rule 8(3) of the Civil  Procedure Rules which  provides as follows:

“Any person on whose behalf or for whose benefit a suit is instituted or defended under sub role (1)  may apply  to  the court to be made a party to such suit”

8)  The counsel  further  cites Order 1 rule 10(2)  of the Civil Procedure Rules which provides that:-

“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 to effectively and completely to adjudicate upon and settle all questions involved in the suit, be added”

9) The counsel submitted that the   overriding objective of the above mentioned rule is to facilitate just, expeditious, proportionate and affordable resolution of disputes. He went on to add that a separate suit would escalate cost even for the plaintiff,  make  un-proportionate demand of time and other resources of the court in dealing  with a dispute  that  can be  concluded in this suit once and for all.

10) The applicant’s counsel relies on the case of Deported  Asian’s Property Custodian Board  Vs Jaffer Brothers Limited  (1999) EA 55(SCU) which  was cited with approval in the case of Pravin Bowry Vs John Ward and Another  [2015] eKLR where the court expressed  itself as follows:-

“For a person to be joined on the ground that his presence in the  suit is necessary for effectual and complete settlement of all questions in  the suit one of two things  has to   be shown.  Either  it has  to be shown that the orders which the plaintiff seeks in the suit, would  legally affect the interest of that  person, and that it  is desirable, for avoidance of multiplicity  of suits to  have such person joined so that he is bound by decision of the court in that suit.

Alternatively, a person qualifies (on  application by a defendant) to be joined as a co-defendant where it is shown that the defendant  cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”

11) On the other hand, the respondent’s counsel submitted that the applicant has not demonstrated that she has any benefit in the present suit land   being parcels number Mavindini/Mavindini/118 and 1194. The counsel urged the court to dismiss the application with costs to the respondent.

12) From the affidavit evidence and the submissions that were filed  herein, it is clear that there is a dispute between the applicant and the respondent  herein as to whether or not land parcels Mavindini/Mavindini/1189 and 1194 form part of the matrimonial  property. The two however do acknowledge that they were in some form of a  relationship of which the applicant  says that this is the right forum to resolve the dispute so as to  facilitate a just, expeditious, propositional and affordable despite resolution. On the  other  hand, the respondent  is of the view that the dispute between him and the applicant   should be resolved in a maintenance cause or under the Children’s Act.

13) Having read the application and the supporting  affidavit as well as the replying affidavit and the submissions that were filed, I would agree with the respondents that the applicant  has not shown that she is a necessary party to this suit.  The issues that she has raised concerning matrimonial property can be dealt with in a substantive suit and not in a miscellaneous application such as this one where the only evidence available  is affidavit evidence.

14) Arising from the above, my evidence is that the  application has no merits. Same is dismissed with costs to the respondent.

Signed , dated and delivered at Makueni this  18th April, 2018.

MBOGO  C.G

JUDGE

In the  presence of

Ms Kyalo for the  applicant

Mr.  Langalanga holding brief for J.A  Makau  for respondent

Mr. Kwemboi Court Assistant

MBOGO C.G, JUDGE

18/4/2018