[2017] KEELC 1777 (KLR)
The court found that the suit parcels of land had changed through sub-division and transfer, resulting in new proprietors who were not parties to the suit. Since orders cannot be made against non-parties, and the subject matter had changed in both numbering and ownership, it was necessary to allow the applicant to...
Source-derived case information.
- Citation
- [2017] KEELC 1777 (KLR)
- Parties
- Plaintiff: Emilio Marangu M'Ndiiri; Defendant: Anjero Munene Marindi; Defendant: Lawrence Antony Kinyua; Defendant: Faith Nkinga Kabucha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 99 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Leave to Amend Originating Summons
- Outcome
- Application partially allowed; leave to amend originating summons granted; costs in the course.
- Judges
- FM Njoroge
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Review of Court Orders, Change of Land Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emilio Marangu M'Ndiiri
Plaintiff
Anjero Munene Marindi
Defendant
Lawrence Antony Kinyua
Defendant
Faith Nkinga Kabucha
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Leave to Amend Originating Summons
Legal Issues
- 1 Whether the court should review its orders dated 11.7.2017.
- 2 Whether the applicant should be granted leave to further amend the originating summons to reflect current land parcel numbers and owners.
- 3 Whether new proprietors should be joined as parties to the suit.
Ratio Decidendi
The court found that the suit parcels of land had changed through sub-division and transfer, resulting in new proprietors who were not parties to the suit. Since orders cannot be made against non-parties, and the subject matter had changed in both numbering and ownership, it was necessary to allow the applicant to amend the originating summons to reflect the current status of the land and join the new proprietors. The court exercised its discretion to allow the amendment, despite the absence of the applicant and his advocate at the hearing, in order to ensure that the real issues in dispute could be determined and to avoid further delay in a matter that had been pending for over 11 years....
Court Disposition
Application partially allowed; leave to amend originating summons granted; costs in the course.
Orders
- The applicant is allowed to amend and exchange his originating summons within 7 days.
- The plaintiff is to serve the defendants with the orders issued on 11.7.2017 and the orders issued today.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 99 OF 2017
FORMERLY MERU HCC NO. 73 OF 2006
EMILIO MARANGU M’NDIIRI………………..……………….......PLAINTIFF
VERSUS
ANJERO MUNENE MARINDI……………...………...........1ST DEFENDANT
LAWRENCE ANTONY KINYUA…………………..............2ND DEFENDANT
FAITH NKINGA KABUCHA………………………..............3RD DEFENDANT
RULING
1. This application is dated 22nd August, 2017 and came to court under a certificate of urgency. It seeks orders:
1. The orders of this Honourable court dated 11. 7.2017 be reviewed.
2. The applicant be granted leave to further amend his originating summons herein to quote the suit parcels of land by their current numbers and include the current owners; to pave way for main hearing.
3. Cost be provided for.
2. The application is buttressed by the affidavit of EMILIO MARANGU M’NDIIRI and has the following grounds.
a) The suit parcel of land as quoted in the amended originating summons have changed through sub-division and transfer as was evidenced by the affidavit sworn on 14. 10. 2016 and the annextures thereto.
b) Two new proprietors have had two of resultant parcels transferred to them.
c) No orders can legally be made against the two new proprietors unless they are joined herein.
d) There may even be more parties hereto in future since the court refused to inhibit the suit parcels of land to preserve the same and the defendants are so mischievous as to be sub-dividing and transferring the same to 3rd parties.
e) The subject matter has changed in both numbering and additional owners and unless amendment is allowed the real issues in dispute will never come to therefore (sic).
f) There is an error apparent on the face of the record as hearing would be in vain as the pleaded parcel of land no longer exist (sic).
3. When the application came up for exparte hearing on 20th September, 2017 the applicant was not in court. His advocate was also not in court. Whereas I am inclined to dismiss the application for non prosecution, having carefully considered the application, I find it necessary to allow prayer 2 in the application.
4. I do note that this matter has been in court for the last 11 years. It ought to have been heard and determined a long time ago. I note that this application is dated 22nd August, 2017. The certificate of urgency was only filed on 19th September, only 10 days before the main suit was to be heard. I am not sure that the late filing of the certificate of urgency was not meant to further delay the hearing of the suit. Further delay should be avoided.
5. It is ordered as follows:
a) The applicant is allowed to amend and exchange his originating summons within 7 days of today so that the suit can be heard on 28th September, as originally intended.
b) As ordered by this court on 11th July, 2017 the plaintiff is to appropriately serve the defendants with the orders issued on 11. 7.2017 and the orders issued today.
c) HEARING as fixed on 11. 7.2017 to take place on 28. 9.2017.
d) Costs shall be in the course.
Delivered in open court at Chuka this 20th day of September, 2017 in the presence of :
CA: Ndegwa
Parties absent
P. M. NJOROGE
JUDGE