Kenso Orina Mochache v Godfrey Muhenge Kivanzi, Wilfred Kegonye Babu & Nelson Musungu, Lydia Angaya Chirande Vincent Lulesa, Dickson Kilonzo Trustee Of Liberty Care Centre Children’s Home [2014] KEHC 1360 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

ELC CASE NO. 320 OF 2009

KENSO ORINA MOCHACHE………………………………….. PLAINTIFF

VERSUS

GODFREY MUHENGE KIVANZI …………………………1ST DEFENDANT

WILFRED KEGONYE BABU …………………………….. 2ND DEFENDANT

AND

NELSON MUSUNGU, LYDIA ANGAYA CHIRANDE VINCENT

LULESA, DICKSON KILONZO TRUSTEE OF LIBERTY CARE

CENTRE CHILDREN’S HOME ……………………………..... PLAINTIFFS

R U L I N G

The matter came for hearing of an Application dated 15th July 2014 seeking to add/enjoin named Trustees of Liberty Care Centre Children’s Homeas Defendant in the suit.  The application is supported by the Affidavit of Nelson Musungu sworn on 15th July 2014 and based on grounds on the face of the application.  The application is anchored on the provisions of Order 1 Rules 10, 14, and 25 Civil Procedure Rules.

The application is opposed by the 2nd Defendant though the Replying Affidavit sworn on 28th August 2014 and also by the Plaintiff vide Replying Affidavit sworn on 3rd September 2014.

The parties herein agreed to canvass the application by way of written submissions which have been filed and exchanged.

The brief Applicant’s case is to the effect that, Liberty Care Centre Children’s Home is situated and developed on the piece of land LR No. 13302/43subject herein which the Plaintiff and Defendants are contesting over ownership.

The Applicants argue that the subject herein belongs to and ought to be transferred to the Trustees of the Children’s Home, the same having been transferred to the Plaintiff and Defendants as trustees of the Children’s Home.

The Applicant further contends that the Children’s Home has been in occupation of the same land long before it was transferred to the parties herein and it continues to occupy the same undertaking programme for protection, rehabilitation and control of children who are residing within home built on suit premises and attaches photographs to demonstrate existence of the building structures.

They have cited the authority of Alice Ndwiga versus Anthony Njue Mugera and Another (2011) eKLR to support their submission, which held that;

“...in deciding on whether to allow a joinder of a party that has been left out, to consider first and foremost whether the said joinder will cause prejudice or injustice to the other parties.”

The Applicant argues that no prejudice or injustice has been demonstrated by Respondents which may emanate from joinder of Applicant.

Further, the Respondent cited Brek Sulum  Hemed versus CDF Board & another (2014) eKLRwhich held;

“…As interested parties, the Applicants need only demonstrate interested in subject of the suit or in other relevant matter affecting the suit.”

AND finally they cited Stokman Rozen Kenya Limited & Another versus Njagu Limited (2007) eKLR which held;

“…amendment of pleadings should be freely allowed and at any stage of pleadings, provided that the amendment or joinder will not result in prejudice or injustice to the opposite party, which cannot be properly compensated for in costs.”

They seek the court thus to allow the joinder sought.

The Plaintiff/Respondent’s case is in a nutshell, that the subject herein is owned by the 3 parties who are registered as owners and it has never been registered in the name of Liberty Care Centre Children’s Home.

He (Plaintiff) argues that the Applicants have not shown any consideration for acquisition of the suit property but only the 1st Defendant who illegally entered into the property and proceeded with construction and installed Children Home which is his own business.  He cited the authority of Rose Wambui Kamau & Others versus Cecilia Mou Charles Harriswhere the court struck out the name of a Defendant who had been enjoined after concluding that his participation will be better served as witness than as a Defendant.  He seeks the application to be dismissed.

The 2nd Defendant/Respondent’s case in a nutshell is that,

It was the 1st Defendant who was excavating and removing soil with intention to build on the suit on the suit property precipitating the court to issue order of injunction to stop such acts.  The 2nd Defendant argues that the Applicants have not put single receipt of payment and continues to argue inter alia that the Applicants are busy bodies who want to hide behind the children to get free benefits from other people’s investments which in this case cannot stand.  Respondent/2nd Defendant seeks the application to be dismissed.

Issues for determination:

Whether the Applicants have demonstrated a case for joinder or to be added in the case as Defendants in terms of Order 1 Rule 10 Civil Procedure Rules?

What are the orders as to costs?

Order 1 Rule 10 Civil Procedure Rules states inter alia;

“Court may at any stage of suit…if satisfied that…it is necessary for determination of the real matter in dispute to do so, order any other person to be substituted or added…whose presence before court may be necessary in order to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit…”

The Applicants have stated that they are trustees of Liberty Care Centre Children’s Home and same institution is on the subject matter a fact acknowledged by the Plaintiff.

The Plaintiff and 2nd Defendant blame the 1st Defendant on the illegal occupation of the institution on the subject matter.  The Plaintiff and 2nd Defendant contend that the Applicants have not shown any scintilla of evidence of any payment for consideration for the subject matter.

Perhaps the Plaintiff and the 2nd Plaintiff ought to have addressed the court as to why they have not removed the children home and how they would remove it from subject matter without enjoining it in the suit.

If the institution turns to be 1st Defendant’s business, then the Plaintiff and Defendant can always get costs from the new Defendants who claim to be institution’s trustee.

The court has to hear the evidence of the existing Defendant and the new parties/children home to determine the rivaling allegations.

In line with Order 1 Rule 10 of the Civil Procedure Rules and the authority of Brek Sulum Hemed above, I find the court has to settle all questions involved in the suit herein by enjoining the children’s home.

Further, in line with authority of Alice Ciurunji Ndegwa above, the Plaintiff and Defendant have not demonstrated prejudice or injustice to be occasioned by enjoining the Applicants as trustees of the institution.

The court, therefore, allows the application as prayed.

DATED, SIGNED and DELIVERED at MACHAKOS this 14THday of NOVEMBER,2014.

CHARLES KARIUKI

JUDGE