JOHNSON MAKORI ONDUKO & BERNARD GESORA MAKORI v COOPERATIVE MERCHANT BANK LTD & EMERG INVESTMENT LIMITED [2009] KEHC 3177 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO

Civil Suit 46 of 2008

JOHNSON MAKORI ONDUKO …………........…………} PLAINTIFFS

BERNARD GESORA MAKORI ……………………..}

VERSUS

COOPERATIVE MERCHANT BANK LTD …………} DEFENDANTS

EMERG INVESTMENT LIMITED ……………………}

RULING

NO. 1

I: Civil Practice and Procedure

1.   The main suit herein concerns land. It is land situated in Kericho being LR. 631/IV/60 whereby there existed a sale agreement.  The plaintiffs wished to have specific performance.

2.   The main suit was originally filed in Nairobi.  It came before me when on 19th April, 2009 I was informed that the plaintiff No. 1 had passed away. No substitution had been effected.

3.   The respondents/plaintiffs advocate stated he now had instructions on the matter. He agreed no action had been taken in this matter. He then admitted and stated that the awards to a plaint filed herein was done without the leave of the court.

II: Application to struck out amended plaint

4.   The applicants/respondents prays through the Chamber Summons 24th June, 2009 application to have the amended plaint struck out.

5.   The respondent conceeds but to be given leave to have the main plaint remain in place.

III: Findings

6.   No. leave has been sought to file the amended plaint.  There has been no substitution of 1st plaintiff although the 1st plaintiff having died held a power of Attorney. No leave was used or applied to enjoin the 2nd plaintiff.

7.   I award costs to the applicant/2nd defendants.

DATEDthis 19th day of February, 2009 at KERICHO

M.A. ANG’AWA

JUDGE

Advocates

S.K. Bundotich advocate instructed by M/S Kale Maina & Bundotich advocate for the 2nd defendant/Applicant – present

C.O. Odongo advocates from Ochichi & Co. advocates instructed to hold brief for M/S Muthaura Kiome & Mwarania advocates and Aminga Opiyo & Masese advocates for the 1st and 2nd Plaintiff/Respondents respectively – present

N/A for M/S Kyalo & Associates advocate for the 1st defendant