Nkukuu & 209 others v Ereri Company Limited; Stephen Ndungu Njenga & others 1st - 64th Interested Parties (Interested Party); County Land Registrar, Nakuru Intended 65th Interested Party (Intended Interested Party) [2023] KEELC 15992 (KLR)

Nkukuu & 209 others v Ereri Company Limited; Stephen Ndungu Njenga & others 1st - 64th Interested Parties (Interested Party); County Land Registrar, Nakuru Intended 65th Interested Party (Intended Interested Party) (Environment & Land Case 260 of 2018) [2023] KEELC 15992 (KLR) (7 March 2023) (Ruling)

Neutral citation: [2023] KEELC 15992 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 260 of 2018

FM Njoroge, J

March 7, 2023

FORMERLY CIVIL SUIT NO 66 OF 2010 (O.S)

Between

Kintalel Ole Nkukuu & 209 others

Plaintiff

and

Ereri Company Limited

Respondent

and

Stephen Ndungu Njenga & others 1st - 64th Interested Parties

Interested Party

and

County Land Registrar, Nakuru Intended 65th Interested Party

Intended Interested Party

Ruling

1. This is a ruling in respect of the plaintiff/applicant’s Notice of Motion dated December 16, 2022which seeks the following orders:a.The intended 65th interested party herein being the county land registrar, Nakuru be joined in this suit as an interested party.b.Leave be granted to amend the Originating Summons to include the county land registrar and the amended annexed Originating Summons be deemed as duly filed.c.The costs of this application be provided for.

2. The application is supported by the affidavit sworn by Kintalel Ole Nkukuu the 1st plaintiff herein.He deposed that they filed the suit herein on March 10, 2010 which sought that they be declared to be entitled toland parcel L R no 8622 by virtue of adverse possession; that the 1st defendant is not a privy to or aware of any relationship between the contractors of the high voltage power line and the proprietors of land known as Longonot/kijabe Block 6/811 And Longonot/kijabe Block 6/812; that on April 24, 1967 the defendant was registered as the proprietor of the suit land; that the interested parties have attached title documents alleged to have been obtained as a result of subdivision of the suit land which they intend to rely on as evidence;thatthey intend to contest the validity of the titles issued to the interested parties hence it is prudent for the land registrar to be joined to the suit so as to ascertain the validity of the titles; thatno prejudice would be occasioned upon the defendants and interested parties.

Response 3. The intended 1st-64thinterested parties filed a Notice of Objection dated January 27, 2023 where they stated that they do not oppose the application for joinder of the intended 65th interested party. They however stated that they be granted leave to amend their pleadings and file further documents/statements.

Submissions 4. Parties did not file any submissions to the application.

Analysis and determination 5. This court has considered the application, and the main issue for determination is whether the chief land registrar should be enjoined as an interested party in this suit.

6. Order 1 rule 10 of the Civil Procedure Rules provides as follows: -“The court may at any stage of the proceedings, either upon or without the application of either party,…order 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.”

7. In the Supreme Court case of Francis Karioki Muruatetu & Another v Republic & 5 others Petition no 15 as consolidated with No 16 of 2013 [2016] eKLR, the court set out guidance on the requirements for successful application for joinder as an interested party. In it the court gave three principles the applicant must show:i.The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.(ii)The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote.(iii)Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”

8. Further, in the case of Skov Estate Limited & 5 others v Agricultural Development Corporation and another [2015] eKLR the court held as follows:“The applicant in an application of this nature must demonstrate that it is necessary that he/she be enjoined in the suit. That becomes important if he has to show that the issues before the court cannot be effectively adjudicated upon in his absence. Being affected by the order of the court is not enough. The applicant must show that in addition to being affected the reliefs which will be granted will not be fully decided upon because an important element of fact, which he has, shall miss if he is not added to the proceedings.”

9. In the instant case, the plaintiffs/applicants contend that the intended interested parties have attached title documents alleged to have been obtained as a result of subdivision of the suit land. They further contend that it is necessary for the land registrar to be joined to the suit so as to ascertain the validity of the titles. I have carefully considered the pleadings filed and a closer look at the annexed titles for the intended interested parties shows that there is need to enjoin need to join the Land Registrar in the case.

10. However, there is need to consider that an interested party may not play as great a role in the matter as a substantive party. By the authority of the Supreme Court Case of Francis Karioki Muruatetu & Another v Republic & 5 Others Petition no 15 as consolidated with No 16 of 2013 [2016] eKLR the fact of existence of a personal interest or stake that the party has in the matter must be set out in the application and I find nothing regarding personal interest of the land registrar set out in the present application. What should this court then do with the application before it? It is clear that the orders can not be granted as sought. Indeed, the provisions of order 1 rule 10 envisage joinder of a party only as a plaintiff or as a defendant. The orders must therefore be qualified.

11. I therefore find that though the land registrar ought to be joined, he should come in as a substantive party, a defendant so that he may aid the court better. In view of the foregoing, I direct that the county land registrar be joined only on condition that he must be joined as the 2nd defendant in this case. The plaintiffs/applicants’ application dated December 16, 2022 is thereby partially allowed as above. There shall be no orders as to costs.

DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 7TH DAY OF MARCH 2023. MWANGI NJOROGEJUDGE, ELC, NAKURU