Geoffrey Kipkemboi Lelei v Harvidner Sigh Charger, Tom Mboya Onyango, Peter Nga’ng’a, Chief Registrar of Lands, Omar Mohammed Omar & Moses Ndirangu Ndumia [2022] KEELC 930 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CASE NO. 74 OF 2020

GEOFFREY KIPKEMBOI LELEI............................................................... PLAINTIFF

=VERSUS=

HARVIDNER SIGH CHARGER.........................................................1ST DEFENDANT

TOM MBOYA ONYANGO...................................................................2ND DEFENDANT

PETER NGA’NG’A ..............................................................................3RD DEFENDANT

CHIEF REGISTRAR OF LANDS.......................................................4TH DEFENDANT

OMAR MOHAMMED OMAR............................................................5TH DEFENDANT

MOSES NDIRANGU NDUMIA..........................................................6TH DEFENDANT

RULING

1. Omar Mohammed Omar the 5th Defendant herein has moved this court vide a Notice of Motion Application dated 26th October 2021, seeking for the following orders:-

a)Spent.

b)The court be pleased to join Moses Ndirangu Ndumia as the 6th Defendant in these proceedings.

c)Pending the hearing and determination of this application, an order be and is hereby issued restraining Moses Ndirangu Ndumia, his agents, servants and any other person acting under his authority or discretion from trespassing onto the suit property, transferring any interest thereon, wasting, damaging, alienating or utilizing, developing, removing or otherwise disposing off the parcel of land known as L.R No. 21080/64 (formerly L.R No. 21080/58) situated in Loresho within Nairobi City County, which order should be enforced by Officer Commanding Station, Spring Valley.

d)Pending the hearing and determination of this suit, an order be and is hereby issued restraining Moses Ndirangu Ndumia, his agents, servants and any other person acting under his authority or discretion from trespassing onto the suit property, transferring any interest thereon, wasting, damaging, alienating or utilizing, developing, removing or otherwise disposing off the parcel of land known as L.R No. 21080/64 (formerly L.R No. 21080/58) situated in Loresho within Nairobi City County, which order should be enforced by Officer Commanding Station, Spring Valley.

e)The costs of this Application to abide the outcome of the suit.

2. The Application is supported by grounds stated on its face as well as the supporting Affidavit of the 5th Defendant, sworn on 26th October 2021, where he deposed that the proposed 6th Defendant has filed MCELC E240/2021; MOSES NDIRANGU NDUMIA VERSUS GEOFFREY KIPKEMBOI LELEI alleging that the suit property belongs to him and thus he has an interest in the matter which necessitates this court to include him as a necessary party.

3.  The application is opposed. The proposed 6th Defendant, Moses Ndirangu Ndumiafiled a replying affidavit sworn on 14th December 2021, where he deposed that he is in occupation of the suit property and is also the owner of the suit property and that all the parties save for the Plaintiff were illusory, vague or imaginary.

4.  On 16th February 2022, Mr. Odunga, counsel for the Plaintiff, Mr. Mungla, Counsel for the 1st and 2nd Defendant and Mr. Mbanji who was holding brief for Mrs. Olembo counsel for the 3rd Defendant, informed court that they were not opposed to the said application.  Mr. Karanja appeared for the 5th Defendant and urged the court to join the proposed 6th Defendant as a party to these proceedings. Curious to note, counsel Karanja did not address the court on the other two prayers that had been sought in the application. Ms. Okectch holding brief for Mr. Odindo opposed the Application and relied entirely on the 6th proposed Defendant’s replying affidavit that was on record. The application was canvassed by way of oral submissions.

Analysis and determination

5. I have considered the application and the response that was filed. In my considered view, the sole issue that arise for determination is whether Moses Ndirangu Ndumia ought to be joined in this suit as a 6th Defendant.

6. Order 1 Rule 10, (2) of the Civil Procedure Rules, which provision 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.”

7. The Black’s Law Dictionary defines “interested party” as;-

“A party who has a recognizable stake (and therefore standing) in a matter.”

8.  In the case of Trusted Society of Human Rights Alliance Vs. Mumo Matemu & 5 Others [2014] eKLR, the Supreme Court held as follows;

….an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the court, when it is made either way. Such a person feels that his or her personal interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause.

9. Essentially therefore, any person who, though not a party to proceedings pending in court, has an interest in the subject matter of such proceedings to the extent that they will be affected by the decision of the court whichever way the decision goes, then such person qualifies to be termed as an interested party and ought to be allowed to join such proceedings to protect his or her interests.

10. I have considered the Applicants’ averments that the proposed 6th Defendant has admitted to being the owner of the suit property and further that the proposed party has equally deposed being in occupation and being the current owner. I have also perused the annexures to their affidavits and it appears that, indeed the proposed party has a stake in these proceedings and it will only be in the interests of justice that he be joined as a necessary party to the suit.

11. It is apparent therefore that whichever way the decision of this court goes, the proposed 6th Defendant will be affected. Hence their presence in this suit is necessary to enable the court to effectually and completely adjudicate upon and settle all issues arising in this suit.

12. As earlier stated, counsel for the Applicant did not address the court on the other prayers 3 and 4 and hence I will not pronounce myself on the same.

13. Consequently, the Application dated 26th October 2021 is disposed in the following terms;

i.The proposed 6th Defendant be and is hereby joined to this suit as a 6th Defendant.

ii.The 6th Defendant is granted 14 days from today to file and serve his pleadings in this suit.

iii.Upon service, the Plaintiff and the Defendants are granted leave of 14 days to respond to the pleadings filed by the 6th Defendant.

iv.This matter shall be fixed for mention at a date to be issued after delivery of this ruling.

v.Costs shall abide the suit.

14. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MARCH 2022.

E. K. WABWOTO

JUDGE

In the Virtual Presence of:-

Mr. Odunga for the Plaintiff.

Mr. Mungla for 1st and 2nd Defendant

Mrs. Olembo for 3rd Defendant.

N/A for the 4th Defendant.

Mr. Karanja for the 5th Defendant.

Mr. Odhiambo for the 6th Defendant.

Court Assistant: Caroline Nafuna.