Jane Wanjira Kimani v Kamau Thiru Nguthiru, Town Clerk Olkejuado County & Olkejuado County Council Interested party Benson Waringu Thigu [2014] KEHC 5955 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO. 232 OF 2011

JANE WANJIRA KIMANI …………...…………….….………………… PLAINTIFF

VERSUS

KAMAU THIRU NGUTHIRU

THE TOWN CLERK OLKEJUADO COUNTY

THE OLKEJUADO COUNTY COUNCIL ................................. DEFENDANTS

BENSON WARINGU THIGU …......….............… INTERESTED PARTY/APPLICANT

R U L I N G

The application dated 10/7/2013 is brought under Order 40 Rule 1 of the Civil Procedure Rules Section 3A of the Civil Procedure Act and all enabling powers of the court and provisions of the law.

The application seeks the following orders:-

“(Spent).

(Spent).

That the Interested Party be enjoined as a party to this suit.

That the court be pleased to direct that a surveyor from the 3rd Defendant visit the area and point out residential plot No. 521 to the Interested Party and residentialPlot No. 522to the Plaintiff.

That the cost of this application be provided for.”

The Applicant’s case according to the affidavit in support sworn on 10/7/2013 is that the Applicant is one of the administrators of the estate of his late mother Njeri Thiru Ngithiru who was the administrator of the estate of the Applicants late father, Thiru Nguthiru.  That the Applicant’s late father was the owner of plot No. 521 at Ongata Rongai within Olekejuado County Council, the plot having been allocated to her in the year 1978.  The Applicant claims that it was the Respondent’s father who trespassed into the plot No. 521 which resulted to the filing of HCCC 2706/94, HCCC 1857/2001 and 2165/2007 prior to the filing of the instant suit.  According to the Applicant, the Respondent filed the case herein against a non-existent party.

When the application came up for hearing on 8/10/13 there was no attendance for the Plaintiff or the Defendants through served.  No papers were filed in opposition to the application.  The application is therefore not opposed.

I have considered the application.  It is noted that the Plaintiff’s claim is in regard to plot No. 522 while the Interested Party claims plot No. 521.  These being adjacent plots, it would serve the interests of justice to allow the orders sought.  Consequently, I allow the application with costs in cause.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 12thday of March2014.

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B. THURANIRA JADEN

JUDGE