[2019] KEELC 2678 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 41 of 2015

GEORGE TED OSEWE........................................................1ST PLAINTIFF

NAFTALI ARODI OYUGI...................................................2ND PLAINTIFF

CATHERINE ODERO..........................................................3RD PLAINTIFF

(Suing as office bearers of LAKELAND WELFARE CLUB)

VERSUS

PAULINE ADHIAMBO RAGET......................................1ST DEFENDANT

DEBRA OJANY MALLOWA..........................................2ND DEFENDANT

ROBERT OCHOLA..........................................................3RD DEFENDANT

LAND REGISTRAR KISUMU........................................4TH DEFENDANT

THE HON. ATTORNEY GENERAL..............................5TH DEFENDANT

KENYA COMMERCIAL BANK LIMITED..................6TH DEFENDANT

RULING

1. Kenya Commercial Bank Limited, the 6th Defendant, seeks vide the motion dated 10th January 2019, to be struck out of this suit and costs of the application be borne by the Plaintiff. The application is based on the five (5) grounds on its face and the affidavit sworn by Omondi Okoyo Shem, Advocate on the 17th January 2019.

2. The application is opposed by the Plaintiffs through the replying affidavit sworn by Naftali Arodi Oyugi, the 2nd Plaintiff, on the 20th February 2019.

3. The application came up for hearing on the 12th June 2019. That Mr. Ragot and M/s Esendi for the 6th Defendant and 4th & 5th Defendants appeared but Counsel for the Plaintiffs and the other Defendants did not. Mr. Ragot relied on the grounds on the motion and the supporting affidavit and sought for the orders prayed, while M/s Esendi supported the application

4. The following are the issues for the court’s determinations;

a) Whether the Plaintiffs have shown whether the 6th Defendant is a necessary party for the issues in this matter to be determined with finality.

b) Who pays the costs of the application.

5. The Court has after considering the grounds, the affidavit evidence, the pleadings filed, come to the following conclusions;

a)That this suit was commenced by the Plaintiffs vide their plaint dated the 3rd February 2015, and filed on the 18th February 2015. That the court agrees with the 6th Defendant’s contention that other than paragraph 9 of the plaint that describes them, none of the other twenty (20) paragraphs and prayers (a) to (m) has mentioned any act or omission or prayer against them.

b)That indeed the 6th Defendant statement of defence dated the 17th June 2015 denied knowledge or involvement in any of the matters raised in the plaint and averred that the suit against it is “misconceived and should be dismissed with costs since the Plaintiffs have failed to make allegations of fact or law against the 6th Defendant save for the fact that it is a financial institution…”

c) That the Plaintiffs replying affidavit sworn on the 20th February 2019, at paragraphs 4 to 13, appear to suggest that it is the 6th Defendant’s duty or obligation to disclose their interest in the issues before the court and for the court to determine their liability, involvement, or otherwise. That is an erroneous view of what pleadings are meant to be or should contain. That Order 1 Rule 3 of Civil Procedure Rules provides for who may be joined as a Defendant as follows;

“3. All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.”

That though at paragraph 4 of the replying affidavit the Plaintiffs depones that the 2nd and 3rd Defendants were, at the time of filing this suit, pursuing for a loan from the 6th Defendant, there is no averment to that effect in the plaint. That accordingly, the court finds that the Plaintiffs have failed to show that the 6th Defendant is a necessary party in these proceedings.

d) That the 6th Defendant’s application has merit and the Plaintiffs should meet its costs in terms of Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya.

6. That in view of the foregoing, the court allows the 6th Defendant’s motion dated the 10th January 2019 in the following terms;

a) That the name of the 6th Defendant is hereby struck out of this suit as prayed with costs.

b) The Plaintiffs do pay the 6th Defendant’s costs of the application.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 3RD DAY OF JULY 2019

In the presence of:

Plaintiffs Absent

Defendants Absent

Counsel M/s Waiwsugu for Obura Mbeche forPlaintiffs and

Mr. Sala for Ragot to 6thDefendant.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE