Gerald Mbagha Mwaviswa v Nairobi City County & National Land Commission [2020] KEELC 1883 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC SUIT NO. 644 OF 2017

GERALD MBAGHA MWAVISWA.....................PLAINTIFF

=VERSUS=

NAIROBI CITY COUNTY.........................1ST DEFENDANT

NATIONAL LAND COMMISSION.........2ND DEFENDANT

RULING

What is before me is the 1st defendant’s Chamber Summons application dated 25th June, 2018 brought under Order 1 Rule 10(2) and (14) of the Civil Procedure Rules seeking an order that the 1st defendant be struck out of the suit.  The application was brought on the ground that the 1st defendant was wrongly joined in the suit and that the plaintiff has no cause of action against the 1st defendant. The application was opposed by the plaintiff through a replying affidavit filed on 10th February, 2020. The plaintiff contended that the plaint raises a reasonable cause of action against the 1st defendant and that the application was an abuse of the process of the court. The plaintiff averred that the 1st defendant had a statutory role to play in the implementation of the reliefs sought in the plaint and as such it ought to remain as a party to the suit.

The application was heard on 10th February, 2020.  I have considered the application together with the affidavit filed in opposition thereto by the plaintiff.  In his plaint dated 11th September, 2017, the plaintiff averred that one, Himatlal Nandilal Bhatt had given him all that parcel of land known as L.R No. 209/1971/1, I.R 28194 (“the suit property”) as a gift in 2003.  The plaintiff averred that the suit property was a leasehold from the Government of the Republic of Kenya.  The plaintiff averred that the lease for the suit property expired on 31st October, 2003. The plaintiff averred that it applied to the 2nd defendant for the extension of the said lease but the 2nd defendant had failed to do so. The plaintiff sought judgment against the 1st and 2nd defendants for;

(i) A declaration that the plaintiff is the absolute owner of the suit property.

(ii) An order compelling the 1st and 2nd defendants to renew the lease in respect of the suit property forthwith.

I am in agreement with the 1st defendant that the plaint does not disclose any cause of action against the 1st defendant. The plaintiff’s complaint concerns the refusal by the 2nd defendant to renew the lease for the suit property.  The plaintiff has stated that it is the 2nd defendant that has the mandate of renewing the said lease.  The plaintiff has not mentioned any wrong that has been done by the 1st defendant to warrant its joinder to this suit.  It is therefore my finding that the 1st defendant has been wrongly joined in the suit.

The upshot of the foregoing is that 1st defendant’s application dated 25th June, 2018 has merit.  The application is allowed as prayed.

Delivered and Dated at Nairobi this 25th Day of June 2020

S. OKONG’O

JUDGE

Ruling delivered virtually through Microsoft Teams video conferencing platform in in the presence of:

The Plaintiff present in person

Ms. Munyasia for the 1st Defendant

Ms. Masinde for 2nd Defendant

Ms. C. Nyokabi-Court Assistant