Susan Kathambi v Ringera S/O Ikwinga & Gedion Muriuki [2013] KEHC 5870 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL SUIT NO. 101 OF 2010

BETWEEN

SUSAN KATHAMBI (SUING AS LEGAL REPRESENTATIVE AND ADMINISTRATOR OF THE ESTATE OF THE LATE

SILAS KINOTI M'RINGERA S/O M'IKWINGA.................................. PLAINTIFF

VERSUS

RINGERA S/O IKWINGA.............................................................1ST DEFENDANT

GEDION MURIUKI........................................................................2ND DEFENDANT

R U L I N G

By consent it was agreed that the application dated 7th January, 1013 be decided on the basis of the supporting Affidavit sworn by the plaintiff on 7th January, 2013 and the 2nd defendant's  Replying Affidavit sworn on 16th January, 2013.

On the face of the Chamber Summons, the applicant stated that the application was premised on Order 1 Rules 10 and 25 of the Civil Procedure Rules, Article 159 (2) of the Constitution of Kenya 2010 and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act.  The application sought orders:

THAT  GEDION MURIUKI be enjoined as the second defendant

in this suit.

THAT the costs for and incidental to this application be provided for.

One of the grounds in the Chamber Summons states:

“1.  THAT the said GEDION MURIUKI  is acting in cahoots with

the first defendant to evict the plaintiff from her land, destroying

her houses and crops,          beating and assaulting her and threatening

to murder the plaintiff.”

This is a very serious allegation of a Criminal nature.  It however does not provide any nexus  between the plaintiff and the intended second defendant in this suit.

In his replying affidavit, the second defendant has opposed the application and pointed out that the plaintiff has not shown why she wanted to enjoin him in the suit.  He has stated that he was a stranger to the allegations made by the applicant.  According to him the applicant merely wanted to inconvenience him by bringing him into a dispute between her and her father-in-law who is the registered owner of the suit land.

Having looked at what the parties have deponed in their affidavits, I have come to the conclusion that he plaintiff has established no legal basis for enjoining the second defendant in this suit.  Consequently, the applicant's application dated 7th January, 2013 is hereby dismissed with costs to the second defendant.

Written and Signed at Meru this 6th day of May, 2013.

P. M. NJOROGE

JUDGE

Delivered and signed in Open Court at Meru this.21ST day of  June 2013. in the presence of:

P. M. NJOROGE

JUDGE