Sivilius Kithuci Njuki, Esbon Nganga Wambugu, Ngai Kareiyu & Ireri Ruminjo v Alice Njuki Mukono (Sued as the legal representative of Njuki Mukono (Deceased), John Njagi Kirangi, Gateri Machanga, Lawrence Njiru Kirangi, John Ngari Mbanda, Julius Ireri Njuki, James Njue Nthiga, David Njeru Kiura, Jamleck Kithu Gititi, John Kariuki Njuki, Willian Machaki Gichoni, Gideon Gitonga Ireri & Peter Macharia Mwangi [2016] KEHC 5581 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT EMBU

ELC CASE NO. 23 OF 2014

SIVILIUS KITHUCI NJUKI….…….................……………………..……1ST PLAINTIFF

ESBON NGANGA WAMBUGU………................……………………..2ND PLAINTIFF

NGAI KAREIYU……..……..............………………….……………….3RD PLAINTIFF

IRERI RUMINJO……………..…............………...…………………….4TH PLAINTIFF

VERSUS

ALICE NJUKI MUKONO (Sued as the Legal Representative of NJUKI MUKONO (Deceased)………………………..….................................………….1ST DEFENDANT

JOHN NJAGI KIRANGI……………………......................…………….2ND DEFENDANT

GATERI MACHANGA……………………....................……………….3RD DEFENDANT

LAWRENCE NJIRU KIRANGI………......................……………………4TH DEFENDANT

JOHN NGARI MBANDA……………….….......................………………..5TH DEFENDANT

JULIUS IRERI NJUKI………………........................…….………….……6TH DEFENDANT

JAMES NJUE NTHIGA…………........................…….…………..………7TH DEFENDANT

DAVID NJERU KIURA……..........................…………….………………..8TH DEFENDANT

JAMLECK KITHU GITITI…………..........................………………………9TH DEFENDANT

JOHN KARIUKI NJUKI……………..........................………….………..10TH DEFENDANT

WILLIAN MACHAKI GICHONI………......................…………………11TH DEFENDANT

GIDEON GITONGA IRERI…………..……........................…….……….12TH DEFENDANT

AND

PETER MACHARIA MWANGI…….......................…………………INTERESTED PARTY

RULING

I have before me an application dated 18th August 2015 brought under Order 1 Rule 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act in which the applicant (PETER MACHARIA MWANGI) seeks the main order that he be enjoined in these proceedings.  According to his affidavit in support of this application, the applicant has deponed in paragraph 2 thereof that he is the registered owner of land parcel No. NTHAWA/SIAKAGO/1662 which is the subject of the suit yet he has discovered that there is a restraining order issued against the said land.  He has annexed a copy of the Title Deed to the land and the restraining order – annextures PMM1 and 2 respectively.

The 6th defendant/respondent (JULIUS IRERI NJUKI) has sworn a replying affidavit in opposition to the application in which he depones, inter alia, that infact the applicant’s title to the parcel No. NTHAWA/SIAKAGO/1662 was cancelled by an order of the Court on 26th September 2005 and no appeal was filed against that order which is entry number 6 in the title.

The plaintiffs/respondents through their advocates Mr. Okwaro did not object to the application.

Order 1 Rule 10(2) 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, 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 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 effectively and completely to adjudicate upon and settle all questions involved in the suit be added”

From the plaint filed herein on 16th April 2008, the plaintiffs, who have not opposed this application, were seeking orders to cancel the registration of the named defendants as owners of some named land parcels and re-store some named persons are owners thereof. There is also an order seeking a permanent injunction to restrain the defendants from entering, using, occupying, cultivating or in any other way interfering with various parcels of land among them land parcel No. NTHAWA/SIAKAGO/1662 which the applicant says is registered in his names and he has annexed a copy of the title deed. The 6th defendant says that registration was cancelled. I have looked at the orders cancelling that registration. It was issued by the Land Disputes Tribunal in Case No. 55 of 2000.  Clearly, a Land Disputes Tribunal under the now repealed Land Disputes Tribunal Act had no jurisdiction to cancel a title and so that will be an issue for trial.  For purposes of this application however, and on the basis of that title, the applicant is entitled to enjoy all the rights and privileges that are appurtenant to that registration until the same is impugned by a competent Court.

In opposing this application, the 6th defendant has deponed in paragraph 6 of his replying affidavit that the suit is filed by the plaintiffs on behalf of the MBUYA clan of the Mbeere Tribe and so the applicant’s interest is well safe guarded by the clan representatives.  A casual look at the plaint shows that plaintiffs have filed this suit in their own names and not as representatives of the Mbuya Clan.  They only plead to be members of that clan but certainly are not suing as the clan’s representatives. The law allows any person “whose presence before the Court may be necessary in order to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit be added”.  By virtue of being the registered proprietor of land parcel number NTHAWA/SIAKAGO/1662 which is a subject in these proceedings, the applicant clearly has an unassailable right to be enjoined in these proceedings. To shut him would result in this Court making a decision over property registered in his names without affording him a hearing.  That would be un-lawful and an affront to Article 40 of the Constitution which protects the applicant’s right to own property.  If the 6th defendant believes that he has a better title to the said property, that will be a matter for the trial Court to determine. For now, the applicant has satisfied this Court that he is entitled to be enjoined in these proceedings.

Ultimately therefore, the application dated 18th August 2015 and filed hereon on 11th September 2015 is allowed.   Costs shall be in the cause.

B.N. OLAO

JUDGE

1ST APRIL, 2016

Ruling delivered in open Court this 1st day of April 2016

Mr. Mutali for Applicant present

No appearance for the Plaintiffs or Defendants.

B.N. OLAO

JUDGE

1ST APRIL, 2016