[2018] KEELC 2090 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC JUDICIAL REVIEW CASE NO.9 OF 2017

IN THE MATTER OF AN APPLICATION FOR JUDICIAL

REVIEW ORDERS OF PROHIBITIONAND CERTIORARI

AND

IN THE MATTER OF THE CONSTITUTION OF

KENYA, ARTICLES 10(2), 40, 67 AND 249

AND

IN THE MATTER OF CONTRAVENTION OF ARTICLES 28, 29(d),(f),

31(b),40(3),47 & 60(1) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF THE LAND REGISTRATION ACT, 2012

AND

AND IN THE MATTER OF AN APPLICATION BY

CHANIA TRAVELLERS CO-OPERATIVE

SAVING AND CREDIT SOCIETY LIMITED...............APPLICANT

-VERSUS-

THE HON. ATTORNEY GENERAL.....................1ST RESPONDENT

THE NATIONAL LAND COMMISSION............2ND RESPONDENT

THE CHIEF LAND REGISTRAR.......................3RD RESPONDENT

THIKA SUB-COUNTY LAND REGISTRAR....4TH RESPONDENT

AND

DANIEL TIMOTHY MURIUKI.............1ST INTERESTED PARTY

PATRICK KARANJA NGUGI..............2ND INTERESTED PARTY

CO-OPERATIVE BANK OF KENYA..3RD INTERESTED PARTY

PETER MWANGI CAGHERU.............4TH INTERESTED PARTY

CECILIA WAMAITHA MWANGI..... 5TH INTERESTED PARTY

RULING

The Exparte Applicant herein Chania Travellers Co-operative Sacco Ltd, filed a Chamber Summons dated 17th August 2017, and sought for leave to be allowed to seek by way of Judicial Review Orders of Prohibition against the 3rd and 4th Respondents or any Respondents in the mater from enforcing the decision of 2nd Respondent contained in Kenya Gazette dated 17th July 2017, in relation to LR.No.Thika Municipality Block 8/184. In the said Chamber Summons application, the Exparte Applicant named five Respondents among them the National Land Commission, 2nd Respondent and five Interested Parties among them Co-operative Bank of Kenya, 3rd Interested Party.

The Exparte Applicant was granted leave to file the substantive application for Judicial Review within a period of 14 days after leave to do so was allowed.

However, the 4th Interested Party, Peter Mwangi Gacheru, who is a beneficiary of the Order of the 2nd Respondent filed a Replying Affidavit and opposed the intended Judicial Review application. The other parties have not responded to the Exparte Applicant’s application.

On 9th November 2017, the 3rd Interested Party, Co-operative Bank of Kenya,filed a Notice of Motion application, premised under Article 159 (2)(a),(b),(d) & (e) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Sections 3, 18(c) and 19 of Environment and Land Court Act and Order 1 Rule 10(2) and Order 2 Rules 15(1)(a) (b) & (c) of the Civil Procedure Rules and sought for the following orders.

1) The name of the 3rd Interested Party/Applicant be struck out as a party to these proceedings.

2) The suit as against the 3rd Interested Party/Applicant be dismissed.

3) The 3rd Interested Party/Applicant be awarded the costs of this application and of the suit.

The said application was premised on various grounds and among them are:-

i. On 5th September 2012, a Charge was registered in favour of the 3rd Interested Party/Applicant (the Bank) as a first legal charge over the title No.Thika Municipality Block 8/184 for the sum of Kshs.14,000,000/=.

ii. Following the determination of review of grants and dispositions of public land by the National Land Commission on 17th July 2017, in Gazette Notice No.6862 Serial No.21 the National Land Commission communicated its decision to revoke the title held by Chania SACCO in respect of the suit property and allocate it to Peter Mwangi Gacheru.

iii. On 19th October 2017, the Bank received Kshs.2,240,121. 75 from Chania SACCO which was applied towards settling the outstanding sums.

iv. There are currently no liabilities owed by Chania SACCO to the Bank therefore the Bank cannot claim protection of any interests as a Chargee.

v. The Bank is therefore not a proper and necessary party to the suit herein.

vi. The continued participation of the Bank as a party to the proceedings herein may prejudice, embarrass and delay the fair trial of the suit.

Further, the application is supported by the Affidavit of Debra Ajwang-Ogada, the Legal Manager of the 3rd Interested Party/Applicant herein who reiterated most of the contents of the grounds for the application. She further averred that the joinder of the Bank to this suit is not necessary as there is no right or interest to enforce against the parties herein. Therefore the Bank is no longer a proper and necessary party to these proceedings.

She urged the Court to allow the 3rd Interested Party’s application.

The application was opposed by the Exparte Applicant who filed a Replying Affidavit through John Kiarii Gicheru, the Chairman of the Applicant herein. He averred that the 3rd Interested Party’s application is made solely to defeat the course of justice as the 3rd Interested Party is a necessary party. Further, that there was no bad faith on the part of the Exparty Applicant in enjoining the 3rd Interested Party herein. He also averred that the suit property was validly and properly charged in favour of the 3rd Interested Party at the behest of the Exparte Applicant who is the proprietor thereof.

Therefore, the 3rd Interested party has identifiable legal claim over the suit property and there is no discharge of charge at the moment. He further averred that the Exparte Applicant would be prejudiced in the event the 3rd Interested Party’s application is allowed and he further contended that it is proper and just for the 3rd Interested Party to remain in the proceedings as their presence will enable the Court to effectually and completely adjudicate upon and settle all issues and questions involved in the suit herein. He urged the Court to disallow the instant application.

The application was canvassed by way of written submissions which this Court has carefully read and considered. The Court has also considered the pleadings in general, the annextures thereto and the relevant provisions of law.

The application herein is anchored under Sections 1A and 1B, of theCivil Procedure Act which deal with the overriding objective of the Act and which is to facilitate the just, proportionate, expeditious and affordable resolution of civil disputes governed by the said Act.

Further, the application is anchored under Section 3A of the same Act which Section donates power to this Court to make any or such necessary orders that would ensure end of justice is met and to prevent abuse of the court process.

The Applicant has sought for orders that the 3rd Interested party’s name be struck out of the proceedings and the claim against it be dismissed.

Striking out of proceedings is governed by Order 2 Rule 15(1) which provides as follows:-

“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—

(a) it discloses no reasonable cause of action or defence inlaw;

or

b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

The 3rd Interested Party has also alleged that the Exparte Applicant has cleared payment of loan facility that had been advanced to it by the 3rd Interested party. Further that though the Exparte Applicant had secured the said loan facility using the suit property, Thika Municipality Block 8/184, with the full repayment of the said loan, the 3rd Interested Party has no further interest over the suit property and therefore it is not a necessary party herein. Therefore the Applicant sought to be removed from these proceedings as the Exparte Applicant has not disclosed any reasonable cause of action against it.

From the above provisions of law, it is evident that the Court has discretion to strike out proceedings on various grounds and among them when the said proceedings discloses no reasonable cause of action. The 3rd Interested Party has alleged that the Exparte Applicant has fully repaid the loan facility and therefore it has no beneficial or legal interest over the suit property. If indeed the Exparte Applicant has fully repaid the loan, why should it care about the interest of the 3rd Interested Party over the suit property?

Order 1 Rule 10(2) of the Civil Procedure Rules grants to Court discretion to struck out the name of any person who is improperly joined in the proceedings whether as a Plaintiff or Defendant. It 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 that 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 effectually and completely to adjudicate upon and settle all questions involved in the suit, be added”.

The 3rd Interested Party has also alleged that it is not a necessary party as it is no longer interested in the suit property herein since the loan facility has been fully repaid and its presence herein is not necessary as it would not assist the court in completely and effectually adjudicating the matter herein. The Exparte Applicant has not denied that the loan facility is fully paid. It has only stated that the charge has not been discharged. Failure to discharge the charge does not make the 3rd Interested Party herein a necessary party to this proceedings. Discharging of a charge is a matter of procedure and it is the duty of the Chargee to initiate the process. The Chargor cannot be forced into the proceedings by the mere fact that the Chargee has not been discharged even though the loan facility is fully repaid.

A necessary party is a party whose presence is crucial to the determination of the matter. The absence of the 3rd Interested Party would not in any way affect the determination of the dispute herein or the intended Judicial Review. In any event the 3rd Interested Party herein has a commercial interest over the suit property and it has claimed it is not interested in the outcome of the suit herein. Therefore it ought not to have been added. See the case of Re: IG Farbenindoutrie AG Agreement(1943) ALL ER 525, where the Court held that:-

“A person with only commercial interest in the subject matter of the proceedings shall not be added”

Equally, the 3rd Interested Party herein had only a commercial Interest over the suit property as the said parcel of land was charged to it. It should therefore not have been added as a party to the suit herein.

The Exparte Applicant has sought for Orders of Certiorari and Prohibition and the 3rd Interested Party has alleged that its interest as a Chargee over the suit property no longer exist and it is therefore not a necessary party. The Court concurs with the above submissions by the Applicant.

The Court will rely on the case of Jan Bolden…Vs…Herman Philipus Steyn & 2 Others (2012) eKLR, in definition of a necessary party as. The Court held that:-

“In my view, a ‘necessary party’ is a person who ought to have been joined as a party and in whose absence no effective decree can be passed in a proceeding by the Court. If a ‘necessary party’ is not impleaded, the suit may be ineffective. In this regard, the question that arises is whether the 3rd Defendant is a necessary party for purposes of enabling the court to effectually and completely adjudicate upon the matter at hand”.

The Applicant has alleged that it is not a necessary party as its presence will not assist the court at all. See the case of Amos…Vs…Raphael Tuck & sons Ltd (1956) 1ALL ER 283, where Court held as follows:-

“The party to be joined must be someone whose presence is necessary as a party. What makes a person a necessary party? The only reason which makes a person a party to an action is so that he should be bound by the result of the action, and the question to be settled, therefore must be a question in the action which cannot be effectually and completely settled unless he is a party….”

It is evident that the presence of the 3rd Intended Party herein is not necessary and retaining it herein would only escalate costs of litigation and also waste 3rd Interested Party’s time on an unnecessary litigation against them. See the case of Gidion Mbuvi Kioko…Vs…AG & 6 Others (2012) eKLR, where the Court held that:-

Joinder of parties imposes costs on parties and at all times the court must be cognizant of its duty to minimize the costs of litigation. Further joinder of unnecessary parties will not only convolute the matter but tend to obscure the real issues and prolong the proceedings thereby undermining the objective of expeditious disposal of cases as envisaged by Article 159”.

Having now found that the 3rd Interested Party is no longer holding any interest over the suit property, then the Court finds that it is not a necessary party and the Exparte Applicant improperly enjoined the Applicant herein as a 3rd Interested Party and as empowered by Order 1 Rule 10(2) the Court proceeds to strike out the name of the 3rd Interested Party from the proceedings herein and further proceeds to dismiss any claim against it by the Exparte Applicant.

Therefore the Court finds that the necessary order herein in ensuring that end of justice is met and to prevent abuse of the court process is to allow the 3rd Interested Party’s Notice of Motion dated 9th November 2017, entirely in terms of prayers No.(a) & (b) with costs to be borne by the Exparte Applicant herein.

It is so ordered.

Dated, Signed and Delivered at Thika this 6th day ofJuly 2018.

L. GACHERU

JUDGE

In the presence of

M/S Njoki holding brief for Mr. Kinyanjui for the Exparte Applicant

No appearance for the 2nd Respondent

No appearance for the 1st, 3rd and 4th Respondents

No appearance for the 1st Interested Party

No appearance for the 2nd Interested Party

Mr. Cheruget for the 3rd Interested Party/Applicant

M/S Njoki Gachichi holding brief for Mr. Mathenge for the 4th Interested Party

Lucy – Court clerk

Court – Ruling read in open court in the presence of the above advocates.

L. GACHERU

JUDGE

6/7/2018