Jackson Mwaniki Ndungu v Peter Andeyo Vuhya [2013] KEHC 1987 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

HCC NO. 24  OF 2012

JACKSON MWANIKI NDUNGU ….......................... PLAINTIFF

VERSUS

PETER ANDEYO VUHYA................................... DEFENDANT

RULING

By an application dated 30th May 2012 the interested party sought to be enjoined as a party in the present suit.  The applicant contends he was the registered owner of title No. E. Bukusu/S. Kanduyi/8830 which  he subdivided and sold  the  numbered portions to the defendant herein.  This makes him have an interest in the outcome of this suit.  Further there is an appeal vide Bungoma HCCA  No. 43 of 2006 still pending between the applicant and the plaintiff.

The application is opposed by the plaintiff who filed a replying affidavit on 25th July 2012. He  avers the applicant has no business to be enjoined into the proceedings as there are no issues to be determined between the plaintiff and the applicant.  The plaintiff/Respondent submits further that the applicant is  only keen to delay this suit by the filing of the present application.  According to him, the L.R.  No. E. Bukusu/S. Kanduyi/8830is intact and no sub-division has been done on the ground.

I have perused  the documents filed to follow up the history of the matter.  There is no doubt  there's an appeal pending in HCC 113 of 2006 regarding E. Bukusu/S. Kanduyi/8830. In it, from the memorandum of  appeal  there is an issue  of boundary dispute. The defendant bought L.R'sE. Bukusu/S. Kanduyi/14796,14677and 14676 which was curved out of  E. Bukusu/S. Kanduyi/8830. This is  shown in the mutations marked PV1 in the affidavit of  PETER  ANJEYO VUHYAH sworn on 22nd March 2012.

The plaintiff/respondent already obtained  orders of temporary injunction that  stopped the  defendant from carrying any development  on this land parcels on the basis  they are his.   The applicant, therefore  is  right  when he says  the  outcome of this suit will affect him. It is him who sold the defendant herein the  parcels for which he has been sued.  The  earlier suits between  him and the plaintiff regarding the dispute is also still pending. Under Order 1 Rule 3 provides;

“All persons may be joined as defendants against whom  any right to relief in respect of or arising  out of the same act.... where if separate  suits were brought   against  such   persons any common  question of law or fact would  arise.”

Rule 5 “It shall not be necessary  that every defendant shall be `interested  as  to all the relief claimed in any suit                against him.”

It therefore follows that  the interested party need not be interested to all reliefs claimed in the suit.  I find that being the owner of the original suit parcel title No. E. Bukusu/S.Kanduyi/8830  for which reason the present  defendant  has  been sued, he  is thus entitled to participate.  The defendant may have chosen to  call him as a witness but since he has moved the court to be a party, this court finds no  reason why he should be denied the request.

The plaintiff/respondent submits the application is intended to delay the trial of this suit. In their submissions, they did not explain how the delay will be occasioned.    In any event  timelines once set for the interested party to file their pleadings, the suit can always be listed for hearing. In the result, the application is allowed, the interested party is joined as 2nd defendant in this  suit.  He is directed  to file and  serve his  statement of defence, documents  and witness statements  within 30 days from the date hereof.  Costs  in the application  be  cause.

RULING  DATED this   8thday of   October 2013

A. OMOLLO

JUDGE.