Kenya Anti-Corruption Commission v Ismail Kipkemboi & 4 others [2019] KEELC 984 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

CIVIL SUIT NO. 180  OF 2009

KENYA ANTI-CORRUPTION COMMISSION......PLAINITFF

VERSUS

ISMAIL KIPKEMBOI & 4 OTHERS..................DEFENDANTS

RULING

(Application to have a defendant struck out on the claim that no cause of action exists against him; the applicant having been named by the plaintiff as being party to a fraud that caused the loss of a house alleged to belong to the Government; clear that there is a cause of action against the applicant; application dismissed)

1. The application before me is that dated 9 May 2019 filed by the 2nd and 3rd defendants. The application seeks to have orders that the 3rd defendant be struck off from this suit.

2. The suit itself was commenced by way of a plaint which was filed on 9 June 2006. That plaint was amended on 29 March 2019. In the amended plaint, it is pleaded that the Government of Kenya reserved the land parcel MN/I/2405 (the suit land) for the construction of a house for members of staff of the then Directorate of Civil Aviation and/or the Meteorological Department and in 1977 a house was duly constructed. It is claimed that in the year 2002, the 4th defendant, who then served as the Commissioner of Lands, fraudulently prepared a grant for the same land in favour of the 1st defendant. In the year 2003, the land was transferred from the 1st defendant to the 2nd defendant. The 3rd defendant/applicant is named as a director of the 2nd defendant.

3. In this application, it is contended that the suit does not disclose a cause of action against the 3rd defendant and should be struck out as against the 3rd defendant.

4. The application is opposed through the Replying Affidavit of Dedan Okwama, an investigator with the plaintiff, and he has deposed inter alia that the 3rd defendant is a necessary party.

5. I have considered the application and gone through the pleadings. It is the case of the plaintiff that among those who fraudulently colluded to cause the suit land to be registered in the name of the 1st and/or 2nd defendant is the 3rd defendant. There is therefore clearly a cause of action demonstrated against the 3rd defendant. It can only be after a full hearing of the case that we can tell whether or not the 3rd defendant is culpable, but clearly, there is a pleading directly affecting him which the plaintiff must be given an opportunity to ventilate.

6. I see no need to say more.

7. I find no merit in this application and it is hereby dismissed with costs.

8. Orders accordingly.

DATED, SIGNED and DELIVERED at MOMBASA this 6th day of November 2019.

_______________________

MUNYAO SILA,

JUDGE.

IN THE PRESENCE OF:

Mr. Makori for the plaintiff/respondent.

Mr Busyeka holding brief for Mr Oloo for the applicant and holding brief for Mr Magut for the 1st defendant.

Court assistant; David Koitamet.