Pius Matingi v Senior Principal Magistrates’ Court, Kangundo & Attorney General [2017] KEHC 2284 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL MISCELLANOUS APPLICATION NO. 71 OF 2017

IN THE MATTER OF ARTICLE 40, 47 AND 50 (1) OF THE CONSTITUTION

IN THE MATTER OF JUDICATURE ACT CAP 8, THE HIGH COURT (PRACTICE AND PROCEDURE RULES (PART 1 RUE 2 AND 3

IN THE MATTER OF ENJOINDER OF JOSEPHAT MULWA MUKIMA alias JOSPHAT MULWA MUKIMA AS AN INTERESTED PARTY TO THIS SUIT

BETWEEN

PIUS MATINGI…........................................................APPLICANT/RESPONDENT

VERSUS

1. SENIOR PRINCIPAL MAGISTRATES’ COURT,

KANGUNDO…………………….…………..............................1ST RESPONDENT

2. THE HON. ATTORNEY GENERAL......................................2ND RESPONDENT

AND

JOSEPHAT MULWA MUKIMA

alia JOSPHAT MULWA MUKIMA….............PROPOSED INTERESTED PARTY

RULING

1. The proposed interested party has filed a notice of motion dated 4th September, 2017 under the Judicature Act Cap 8, the High Court (Practice and Procedure Rules (Part 1 Rule 2 and 3). He seeks to be enjoined as a party to this suit before directions are taken to safeguard his alleged interests in the property subject to this suit. The motion is based on the grounds enlisted on its body and the supporting affidavit of Edward Gacau Kariuki who is the advocate in conduct of this matter on behalf of the proposed interested party. It is claimed that the proposed interested party is the registered owner of parcel of land Title No. Donyosabuk/Komarock Block 1/373 measuring approximately 40. 50 Ha (‘the property’). That the property was fraudulently and illegally sub-divided and sold to various persons and new titles issued. Upon investigations at Kangundo Police Station, the applicant was arrested and charged with the offence of obtaining the property contrary to section 320 of the Penal Code in Kangundo SPM Criminal Case No. 1346 of 2016, R v. Pius Matingi wherein the proposed interested party was the complainant. The proposed interested party later filed Machakos ELC No. 11 of 2017, Josephat Mulwa Mukima v. Pius Matingi (‘the ELC case’) with a view to have the true ownership of the property determined. The applicant filed a Judicial Review Nairobi High Court Miscellaneous Application No. 455 of 2017 seeking prohibitory orders against the 1st respondent from proceeding in any manner with SPM Criminal Case No. 1346 of 2016. The applicant further filed a suit seeking to quash SPM Criminal Case No. 1346 of 2016 (‘the criminal case’). The said suit was scheduled for directions before this court on 6th September, 2017. It is the proposed interested party’s contention that the quashing of the criminal case will defeat the end of justice in the ongoing ELC case and render nugatory any suit in respect to fraudulent dealings in the property occasioning the proposed interested party irreparable loss. It was stated that there is an urgent need to enjoin the proposed interested party to this suit before the issuance of directions to safeguard his interests in the property, provide evidence and for justice to be served.

2. The applicant opposed the motion vides his replying affidavit sworn on 21st September, 2017 and filed on 25th September, 2017. He essentially contended that the purpose of this motion is to litigate the contents of the ELC case something the proposed interested party is said to have earlier attempted in the criminal case. That the suit is directed against the 1st respondent and as such the proposed interested party is a busy body who intends to abuse the court process and steal the match from the applicant. That there is no purpose of enjoining a person as an interested party if the person will be of no assistance in the determination of the matter before court and will only burden these proceedings and prejudice the speedy conclusion of this matter. That the proposed interested party’s grievances cannot be determined within this case and are issues for determination in the ELC case. That it is telling that the proposed interested party stated that he is relying on the criminal case to determine the judgment in the ELC matter. That Judicial Review is a fundamental and inalienable Constitutional right enshrined in Article 23 (1)(f) and Article 47 of the Constitution.

3. The essence of enjoining a party to a suit is to secure his/her interest in the suit with a view of serving justice. In this case while the applicant claims that the interested party has no interest in the suit, I note that the proposed interested party’s allegation that the property is his and was fraudulently transferred has not been contended by the applicant. That fact having not been contended, the proposed interested party’s facts are in law presumed to be true. In the circumstances, I find that the interested party should be enjoined to enable this court determine the issues with clarity.

4. In the result, the proposed interested party’s application dated 4th September, 2017 has merit. The same is allowed as prayed. The interested party is now granted 14 days to respond to all the pleadings and serve the applicant and respondents who are grated leave to respond within 14 days upon service if need be.

Dated, Signed and Delivered at Machakos this 6thday of November, 2017.

D. K. KEMEI

JUDGE

In the presence of:

Kaniaru for Gachau  for interested party

Machogu for 1st and 2nd Respondents

No appearance Wandugi for Applicant

C/A - Kituva