Teresia Njeri Njuguna v Veronica Wanjiku Gitonga & Embakasi Ranching Company Limited [2019] KEELC 1078 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CIVIL CASE NO.394 OF 2011

TERESIA NJERI NJUGUNA.......................................................PLAINTIFF

VERSUS

VERONICA WANJIKU GITONGA..................................1ST DEFENDANT

EMBAKASI RANCHING COMPANY LIMITED..........2ND DEFENDANT

RULING

1. This is the notice of motion dated 6th June 2017 brought under order 10 rule 11 and order 51 rule 1 of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law.

2. It seeks orders

(1) Spent.

(2) The 2nd defendant/applicant be granted leave to file and serve its defence out of time and hence allowed to defend this suit on merit.

(3) Any other or further orders that this honourable court deem fair and just to grant for fair and proper determination of the dispute herein.

(4) The costs of this application be provided for.

3. The grounds are on the face of the application and are set out in paragraphs (a) to (e).

4. The application is supported by the affidavit of Jack Kamau Wachira a surveyor of the 2nd defendant/applicant sworn on the 6th June 2017.

5. The application is opposed. There are grounds of opposition filed by the plaintiff/respondent dated 30th August 2017.  The 1st defendant/respondent has sworn a replying affidavit in support of the 2nd defendant’s/applicant’s application.

6. The application was canvassed by way of written submissions.

7. I have considered the notice of motion and the affidavit in support.  I have also considered the grounds of opposition and the replying affidavit. The issue for determination is whether this application is merited.

8. The plaintiff and the 1st defendant claim to have bought the suit property from the 2nd defendant. The 2nd defendant is therefore a necessary party to these proceedings. Its presence will assist the court to fairly and justly adjudicate and determine this dispute.

9. I am guided by Article 159 (2) (d) of the Constitution which implores this court to administer justice without undue regard to technicalities.

10. I am satisfied that the 2nd defendant/applicant has given sufficient reasons to warrant this court to allow it to defend this suit.

11. Accordingly, I find merit in this application and grant the orders sought namely:-

(a) That leave is granted to the 2nd defendant/applicant to file and serve its defence within 21 days from the date hereof.

(b) The plaintiff and the 1st defendant shall have corresponding leave to amend the plaint/defence respectively if need be.

(c) The costs of this application be borne by the 2nd defendant/applicant.

It is so ordered.

Dated, signed and delivered in Nairobi on this 24th day of October 2019.

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

No appearance for the Plaintiff

Mr. Gachuhi for the 1st defendant and also holding brief for Mr. Ngato for the 2nd Defendant

Kajuju -Court Assistant