Ruth Mwari Kilemi, Japhet Mutiga M’rubi, Isaiya M’itubiri M’ituma & M’mutiga M’elimana v Josphat Mwilaria, Caxton Kaunyangi Ayub, District Land Adjudication & Settlement Officer Tigania & Attorney General [2015] KEHC 3301 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ENVIRONMENT AND LAND CASE NO.203 OF 2012

RUTH MWARI KILEMI.......................................................................1ST PLAINTIFF

JAPHET MUTIGA M’RUBI................................................................2ND PLAINTIFF

ISAIYA M’ITUBIRI M’ITUMA...........................................................3RD PLAINTIFF

M’MUTIGA M’ELIMANA................................................................4TH PLAINITTFF

VERSUS

JOSPHAT MWILARIA...................................................................1ST DEFENDANT

CAXTON KAUNYANGI AYUB......................................................2ND DEFENDANT

DISTRICT LAND ADJUDICATION &

SETTLEMENT OFFICER TIGANIA................................................. 3RD DEFENDANT

HON.ATTORNEY GENERAL............................................................. 4TH DEFENDANT

RULING

This Application is dated 30th June, 2015 and seeks Orders:-

THATthe 1st and 2nd Defendants/Applicants be granted leave to amend their statements of defence on record, in terms of the annexed draft amended statements of defence.

THATTimothy Mwingirwa Mutiga be enjoined in this case as the 5th Defendant

THATcosts of this Application be in the cause.

It is supported by the Affidavit of Josphat Mwilaria and Caxton Kanyangi Ayub and  has the following grounds:-

THATthe 1st and 2nd Defendants’/Applicants’ statement of defence on record leave out pertinent facts like the numbers of their parcels of land and how they acquired them.

THATthe ground claimed by the Plaintiffs/Respondents actually belong to the 1st and 2nd Defendants & Timothy Mwingirwa Mutiga, whose presence in this case is indispensable. The three are relatives and their parcels of Land originate from their ancestral clan land.

THATthe afore-said details which are missing in the statements of defence are critical and cardinal in determining the true owners(s) of the suit lands on the ground.

THATthe amendment sought shall enable the Court to determine all the issues at variance amongst the parties effectually, once and for all and with finality.

THATthe Plaintiff shall not be prejudiced at all, by the relief sought.

On 22/07/2015, the parties by consent agreed that the Application be allowed.

In the Circumstances, it is allowed. I do direct as follows:

Defendants to amend their defences within 30 days of today and the Plaintiffs to amend their Plaint within 30 days of service upon them with the Defendants amended defence by the Defendants.

Plaintiffs to put in papers to substitute the 2nd Plaintiff within 30 days.

Costs shall be in the cause.

Upon achievement of the amendment of the defences and the Plaint, Parties to obtain a mutually convenient date for directions from the Registry.

Delivered in Open Court at Meru this 22nd day of July, 2015 in the presence of :-

Cc.:  Lilian/Daniel

Gichunge for Plaintiffs

Mbaabu for Defendants

P.M. NJOROGE

JUDGE