Mohammed Shahid Moughal v Michael Mooke Kikaye, Land Registrar Kajiado, National Land Commission, Attorney General, Estate of Lekerra Ole Kikae & Estate of Lekera Kikae Reipa [2018] KEELC 2868 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAJIADO

ELC CASE NO. 753 OF 2017

MOHAMMED SHAHID MOUGHAL.....................................................PLAINTIFF

VERSUS

MICHAEL MOOKE KIKAYE......................................................1ST DEFENDANT

THE LAND REGISTRAR KAJIADO.........................................2ND DEFENDANT

THE NATIONAL LAND COMMISSION...................................3RD DEFENDANT

THE ATTORNEY GENERAL.....................................................4TH DEFENDANT

ESTATE OF LEKERRA OLE KIKAE.......................................5TH DEFENDANT

ESTATE OF LEKERA KIKAE REIPA…..................................6TH DEFENDANT

RULING

What is before Court for determination is the 1st Defendant’s Notice of Preliminary Objection dated the 12th February, 2018 on the hearing of the Notice of Motion application dated the 2nd February, 2018 on the following grounds:

1. The Application dated the 2nd February, 2018 is defective on account of misjoinder of parties.

2. The Plaintiff/Applicant has taken liberty to include parties who do not have locus standi in this suit.

3. The Honourable Court cannot determine the application as filed without determining the issue of locus standi.

4. The instant application is misconceived, lacks merit and it an abuse of the court process.

On the 13thFebruary, 2018, the 1st Defendant and the Plaintiff submitted on the Preliminary Objection. The 1st Defendant’s Counsel stated that the application filed by the Plaintiff has included parties who are not in the suit. He stated that the Plaintiff  has taken liberty to include the 2nd - 6th Defendants without liberty of court. He averred that the Plaintiff had earlier made an application dated the 17th February, 2015 seeking to amend the Plaint, where he had struck out the said parties he has now included in the instant application, without leave of court. He confirmed that the application to amend the Plaint was allowed and parties struck out. He insisted that the Court could not decide on the application as it is without determining the issue of locus. He sought for the court to dismiss the application as filed.

The Plaintiff who was acting in person stated that he had done a further amendment to the application, and in the amended Plaint they stand as cancelled as before. He averred that he included the 2nd – 6th Defendants in his amendment, and that is the time he made his application dated the 2nd February, 2018. He insisted the parties are not part of his amendments.

The only issue for determination is whether the Plaintiff has included parties in the application who are  parties to the suit. The 1st Defendant contends that the 2nd – 6th Defendants are not parties to the suit and it is pertinent for the court to determine the issue of locus before the application dated the 2nd February, 2018 is determined.

Order 1 rule 10 of the Civil Procedure Rules provides that:

‘(1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.

(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.’

I note the Plaintiff had the intention of amending his Plaint and annexed the draft amended Plaint to the application. I however note that the Court is yet to grant leave to allow the amendment. In so far as the Plaintiff has indicated the names of the 2nd  - 6th Defendants in the application, based on the provisions of the Civil Procedure Rules above, I do not deem this to be fatal. I note that the Court has a discretion to  add a party as Plaintiff or Defendant whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit.

In the circumstances, I will decline to allow the PO but grant the Plaintiff leave of 14 days to file and serve the amended Plaint  which includes the 2nd – 6th Defendants, after which the application dated the 2nd February, 2018 will be set done for hearing on its merits.

Costs will be in the costs

Dated signed and delivered in open court at Ngong this 21st day of June, 2018

CHRISTINE OCHIENG

JUDGE