[2018] KEELC 2747 (KLR)
The court found that the applicants failed to demonstrate a sufficient legal interest in the suit property to warrant their joinder as parties. Their claim of purchase and occupation was unsupported by evidence of title or the identity of the seller. The judgment was rendered against the defendant, his agents,...
Source-derived case information.
- Citation
- [2018] KEELC 2747 (KLR)
- Parties
- Plaintiff: George Kimeria Gichuki; Defendant: George Maguti; Applicant: Joseph Orwaru Naftal; Applicant: Priscilla Wangari
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 189 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application for Joinder and Setting Aside/varying Orders
- Outcome
- application dismissed
- Judges
- BM Eboso
- Legal Topics
- Joinder of Parties, Adverse Possession, Eviction Orders, Limitation of Actions, Registered Land Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Kimeria Gichuki
Plaintiff
George Maguti
Defendant
Joseph Orwaru Naftal
Applicant
Priscilla Wangari
Applicant
Procedural Posture
Civil Suit / Ruling on Application for Joinder and Setting Aside/varying Orders
Legal Issues
- 1 Whether the applicants should be joined as parties to the suit.
- 2 Whether the orders issued on 11th July 2017 should be vacated, varied or set aside.
- 3 Whether the applicants have established a legal interest in the suit property warranting their participation in the proceedings.
Ratio Decidendi
The court found that the applicants failed to demonstrate a sufficient legal interest in the suit property to warrant their joinder as parties. Their claim of purchase and occupation was unsupported by evidence of title or the identity of the seller. The judgment was rendered against the defendant, his agents, servants, and tenants, not the applicants. Any claim by the applicants based on adverse possession must be pursued in a separate action as provided by the Limitation of Actions Act. The applicants did not present any material to challenge the plaintiff's registered title, which is protected under the Land Registration Act. Consequently, the court dismissed the application for...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 5/10/2017 is dismissed.
- The applicants, Joseph Orwaru Naftal and Priscilla Wangari, shall bear costs of the application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CIVIL SUIT NO. 189 OF 2014
GEORGE KIMERIA GICHUKI..............................................PLAINTIFF
=VERSUS=
GEORGE MAGUTI...............................................................DEFENDANT
RULING
1. Judgment in this suit was rendered on 23/6/2017 in the following terms:
(a) The defendant, his agents, servants and/or tenants shall vacate and surrender Land Reference Number 209/10921 comprised in Grant Number 144199 within sixty (60) days from the date of service of the decree herein.
(b) In default of (a) above, an eviction order shall issue to be enforced under the supervision of the Area Police Officer Commanding Police Division.
(c) The defendant shall demolish and remove all the illegal structures erected on the suit property within sixty five (65) days from the date of service of the decree.
(d) The plaintiffs shall have costs of this suit.
2. Subsequently, on 5/10/2017, Joseph Orwaru Naftal and Priscilla Wangari brought a Notice of Motion dated 5/10/2017 seeking among other orders, an order joining them as parties to the suit. They also sought to vacate, vary or set aside the orders issued on 11th July 2017.
3. The applicants contend that they have resided on the suit property for over 12 years, since 2007, hence they ought to have been involved in the proceedings in this suit.
4. The plaintiffs/decree holder opposed the application through a replying affidavit sworn by James Jack Mwangi Gichuki on 23/10/2017. He contended that the applicants are proxies of the defendant being used to scuttle the judgment.
5. The court has carefully considered the application. The applicants contend that they have had uninterrupted and peaceful occupation of the suit property for over 12 years. They further contend that they “purchased and have been in possession of the suit property since 2007”. They do not however indicate whom they purchased the suit property from and whether that seller had title to the property they contend to have acquired through purchase.
6. Secondly, the court notes that judgment in this suit was rendered against George Maguti, his agents, servants and tenants. It was not rendered against the applicants. If the applicants have any claim premised on the doctrine of adverse possession, the Limitation of Actions Act has provided a procedure for ventilating that claim. I am satisfied that the judgment against George Maguti is not a bar to the plaintiff’s claim and a separate action by them can properly be pursued outside this suit.
7. Thirdly, the plaintiffs have not presented to court any material to challenge the deceased’s title to the suit property. The deceased’s title is registered and is protected under the Land Registration Act 2012.
8. In light of the foregoing, I am not satisfied that the applicants have made out a case for joinder and for the re-opening of this case. The Notice of Motion dated 5/10/2017 is therefore dismissed. The applicants, Joseph Orwaru Naftal and Priscilla Wangari shall bear costs of the application.
DATED SIGNED AND DELIVERED AT NAIROBI ON THIS 29TH DAY OF JUNE 2018.
...........................
B M EBOSO
JUDGE
In the presence of:-
Mr Miano holding brief for Mr Mandala for the Plaintiff
No appearance for the Defendant
Ms Halima Abdi - Court clerk