[2025] KEELC 583 (KLR)

China Wu Yi (Kenya) Precast Company Ltd v Muenje & another; Petwa Construction Co Ltd (Proposed Defendant) (Environment & Land Case E051 of 2024) [2025] KEELC 583 (KLR) (10 February 2025) (Ruling)

Neutral citation: [2025] KEELC 583 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case E051 of 2024

CA Ochieng, J

February 10, 2025

Between

China Wu Yi (Kenya) Precast Company Ltd

Plaintiff

and

Catherine Nyambura Muenje

1st Defendant

Director Of Surveys Kenya

2nd Defendant

and

Petwa Construction Co Ltd

Proposed Defendant

Ruling

1. What is before Court for determination is the proposed 3rd Defendant’s Chamber Summons application dated the 23rd September, 2024, where it seeks the following Orders:a.That Petwa Construction Company Limited be joined in the instant suit as a 3rd Defendant.b.That the costs of the application be provided for.

2. The application is premised on the grounds on the face of it and the supporting affidavit of Jeremiah Kahuthia, its General Manager, where he deposes that the proposed 3rd Defendant is the legal owner of LR No. Mavoko Town Block 2/770 measuring 12. 60 hectares. He contends that the proposed 3rd Defendant has a stake in the proceedings herein and is hence a necessary party.

3. The Plaintiff opposed the instant application by filing a replying affidavit sworn by Shi Zuliang, its Deputy General Manager, where he deposes that the Plaintiff is the legal owner of LR No. Mavoko Town Block 2/119. He insists that through searches conducted on the title to the land, it revealed that the 1st Defendant is the legal owner of LR No. Mavoko Town Block 2/ 770. He argues that the Certificate of Title is hence the prima facie proof of ownership. He demands that the proposed 3rd Defendant should furnish court with a certified copy of its Certificate of Title from the Land Registrar.

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

Analysis and Determination 5. Upon consideration of the instant Chamber Summons application including the respective affidavits, annexures and rivalling submissions, the only issue for determination is whether the proposed 3rd Defendant should be joined in this suit as one of the Defendants.

6. On joinder of a Defendant to a suit, Order 1 Rule 10 (2) of the Civil Procedure Rules provides that:‘(2)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.'

7. In the current scenario, I note the Plaintiff filed this suit claiming that the 1st Defendant who is the proprietor of LR No. Mavoko Town Block 2/ 770, encroached on a portion of its land being LR No. Mavoko Town Block 2/119 measuring 0. 6818 Hectares. Further, that she has been blasting rocks, excavating stones and ballast, from the encroached area, for sale. He explains that, according to a report dated the 7th June, 2024, the monetary value of the stones/ballast that the 1st Defendant has excavated from its property is about Kshs. 215, 498, 000/=. It sought among other orders that the 1st Defendant be ordered to pay it Kshs. 215, 500,000/= as special damages, Kshs 2,000,000/= in general damages, a permanent injunction to issue restraining the 1st Defendant from encroaching on a portion of the Plaintiff’s land and costs.

8. The Plaintiff has opposed the joinder of the proposed 3rd Defendant insisting that LR No. Mavoko Town Block 2/770 is owned by the 1st Defendant and not the proposed 3rd Defendant. I note the proposed 3rd Defendant in its supporting affidavit annexed a copy of the title for LR No. Mavoko Town Block 2/770 issued on 18th October, 2012 in its name.

9. In the case of Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] 1 EA 55 it was held that:“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”

10. While in the case of Zephir Holdings Ltd vs. Mimosa Plantations Ltd, Jeremiah Matagaro & Ezekiel Misango Mutisya (2014) eKLR, it was held that:“A proper party is one who is impleaded in the suit and qualifies the thresholds of a plaintiff or defendant under Order 1 rule 1 and 2 respectively, or as a third party or as an interested party and whose presence is necessary or relevant for the determination of the real matter in dispute or to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. And the court has a wide discretion to even order suo moto for a party to be impleaded whose presence may be necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. Accordingly, a suit cannot be defeated for mis-joinder or non-joinder of parties.”

11. Based on the facts as presented and relying on the legal provisions I have quoted while associating myself with the cited decisions, it is my considered view that since the main issue in dispute revolves around encroachment of a portion of the Plaintiff’s land by owner of LR No. Mavoko Town Block 2/770, then any party holding a title to the said land should be a party to these proceedings. I opine that since the proposed 3rd Defendant has also produced a copy of the Certificate of Title to LR No. Mavoko Town Block 2/770, noting that the 1st Defendant has not filed any pleadings disputing the said title, its involvement in these proceedings is necessary to enable the court effectually and completely adjudicate upon as well as settle all questions involved herein. In my view, the Plaintiff has not demonstrated what prejudice its stands to suffer if the proposed 3rd Defendant was joined in these proceedings as one of the Defendants.

12. It is against the foregoing that, I find the Chamber Summons application dated the 23rd September, 2024 merited and will allow it but make no Order as to Costs.

13. I direct the Plaintiff to file and serve an amended Plaint in seven (7) days, after which the 3rd Defendant should file and serve its Defence within twenty-one (21) days from the date hereof.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10th DAY OF FEBRUARY 2025CHRISTINE OCHIENGJUDGEIn the presence of:Farah for PlaintiffOdhiambo for Proposed 3rd DefendantCourt assistant: Joan