Seagulls View Ltd v Fred Gumo & Blue Stone Holdings Limited [2014] KEHC 6873 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT MALINDI

LAND CASE NO. 149 OF 2012

SEAGULLS VIEW LTD....................................................PLAINTIFF/RESPONDENT

=VERSUS=

FRED GUMO............................................................1ST DEFENDANT/APPLICANT

BLUE STONE HOLDINGS LIMITED…………………..………...…2ND DEFENDANT

R U L I N G

Introduction

The 1st Defendant has filed an Application dated 27th November 2012 seeking to strike out the suit with costs.

The Application is based on the grounds that the 1st Defendant is not the Registered owner of L.R. NO.5054/239, the suit property.  However, the 1st Defendant has admitted that a company which he has interests in, the 2nd Defendant, owns the suit property.

The Plaintiff did not file a response to the said Application.  However, the Plaintiff's advocate informed the court that he has since filed an Amended Plaint enjoining Bluestone Holdings Limited, the registered proprietor of the suit property, as the 2nd Defendant.  The Plaintiff's Advocate submitted that the Defendant was sued in his personal capacity because a company cannot be accused for trespass, which is the Plaintiff's cause of action as against the 1st Defendant.

It is trite law that a suit can only be defeated if it cannot be revived by way of amendment.

Order 15 Rule 1(a) and (d) of the Civil Procedure Rules 2010 provides that at any stage of the proceedings, the court may order to be struck out or amend any pleading on the ground that it discloses no reasonable cause of action or defence in law or it is otherwise an abuse of the process of the court.

Order 1 Rule 9 and 10 of the Civil Procedure Rules further provides that a suit cannot be defeated by reason of the misjoinder or non-joinder of parties, and where a suit has been instituted in the name of the wrong persons, the court may order any other person to be added or substituted.  The 1st Defendant has admitted that he is a director in the 2nd Defendant’s company.  The Plaintiff has since amended the Plaint and enjoined the registered proprietor of L.R. NO.5054/239.  The Application has therefore been overtaken by events.

For the reasons I have given above, I shall, which I hereby do, dismiss the Defendant's Application dated 27th November 2012.  Each party shall bear its own costs.

Dated and Delivered in Malindi this 28th Day of February 2014

O. A. Angote

Judge