[2007] KEHC 3562 (KLR)
The court held that striking out a party from a suit is a drastic remedy that should only be exercised in the clearest of circumstances, where there is no doubt as to the party's lack of involvement. In this case, the court found that the 3rd defendant, as the holder of the title to the disputed land, would be...
Source-derived case information.
- Citation
- [2007] KEHC 3562 (KLR)
- Parties
- Plaintiff: Francis John Wanyange; Defendant: Commissioner of Lands; Defendant: Director of Physical Planning; Defendant: River View Plaza Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 196 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out 3rd Defendant
- Outcome
- application dismissed
- Legal Topics
- Striking Out Applications, Allocation of Public Land, Capacity of Government to Allocate Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis John Wanyange
Plaintiff
Commissioner of Lands
Defendant
Director of Physical Planning
Defendant
River View Plaza Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out 3rd Defendant
Legal Issues
- 1 Whether the 3rd defendant should be struck out from the suit for lack of cause of action.
- 2 Whether the Government of Kenya had legal capacity to allocate the subject land.
- 3 Whether the allocation of the land to the 3rd defendant was unconstitutional.
Ratio Decidendi
The court held that striking out a party from a suit is a drastic remedy that should only be exercised in the clearest of circumstances, where there is no doubt as to the party's lack of involvement. In this case, the court found that the 3rd defendant, as the holder of the title to the disputed land, would be affected by any orders made if the plaintiff succeeded against the Government. Therefore, it was imperative for the 3rd defendant to remain a party to the proceedings to ensure that all affected parties are before the court. The application to strike out the 3rd defendant was thus rejected.
Court Disposition
application dismissed
Orders
- The application to strike out the 3rd defendant from the suit is dismissed.
- No costs are awarded to the plaintiff/respondent and the 1st and 2nd defendants are not to be paid by the 3rd defendant.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 196 of 2003
1. Land and Environmental Law Division
2. Civil Practice and Procedure
i) Subject of main suit land
LR 209/12829
LR 1870/1193
3. That the said suit against the 3rd defendant be struck out.
Application opposed.
The Government had no legal capacity to allocate the land.
5. Held: Striking out should be done in very clearest circumstances applicant.
Application refused
6. Application dismissed
7. Case law – nil
8. Advocate:
B.N. Simiyu of Iseme Kamau & Co. Advocates for the defendant/applicant – present
J.W. Mwaniki for holding brief for L. Muiruri for Attorney General the 1st and 2nd defendant/Respondent – present.
S. Ritho of S.K. Ritho & Co. Advocates for the 3rd defendant - absent
FRANCIS JOHN WANYANGE………………..…....……….................PLAINTIFF
VERSUS
COMMISSIONER OF LANDS …………………........................1ST DEFENDANT
DIRECTOR OF PHYSICAL PLANNING ……….....................2ND DEFENDANT
RIVER VIEW PLAZA LIMITED ……………….........................3RD DEFENDANT
RULING
1. The application before court dated 12 July 2005 has been pending in these court corridors for 2 years. The said applicant 3rd defendant prays that he be struck out from the suit on grounds that there is no grounds that there is no cause of action against him. That a dispute really remains between the defendant 1 and 2 being the Government of Kenya
nts and the plaintiffs.
2. In this case the respondent plaintiff object to the strucking out of the suit. The government of Kenya had no capacity through the Commissioner of Land and the Director of Physical Planning to allocate original LR 1876/1/193 to further sub-division which was intended for a road reserve. That sub division was unconstitutional and should not therefore be permitted. The reasons that the third defendant was allocated the land secretly is unknown.
3. The plaintiff/respondent will seek orders of declaration that the allocation of land was illegal and unconstitutional.
I: Finding
4. In a striking out application there must be in the clearest circumstances. No doubt arising in a matter to show that the 3rd defendant are not part of this land.
5. In this case it is imperative that if the plaintiff is successful in his case against the Government of Kenya it would mean the holder of title are required to be effected by orders of the court.
6. I reject this application to strike out the 3rd defendant from this case.
7. I award no costs to the plaintiff/respondent and defendant 1 and 2 not to be paid by the 3rd defendant because the plaintiff was absent at the reading of this ruling.
Dated this 15th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
B.N. Simiyu of Iseme Kamau & Co. Advocates for the defendant/applicant – present
J.W. Mwaniki for holding brief for L. Muiruri for Attorney General the 1st and 2nd defendant – present.
S. Ritho of S.K. Ritho & Co. Advocates for the 3rd defendant - absent