[2022] KEELC 630 (KLR)

EPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYAHURURU

ELC NO. 6 OF 2021

HANNAH MUTHONI GICHU........................................................................................PLAINTIFF

-VERSUS-

MALEWA RANCHING CO. LTD.......................................................................1ST DEFENDANT

NJENGA NDUNGU T/A NJENGA ENTERPRISES........................................2ND DEFENDANT

VICTORIA WANJIKU MACHARIA..................................................1ST INTERESTED PARTY

NDUNG’U KARIUKI...........................................................................2ND INTERESTED PARTY

RULING

A. INTRODUCTION

1. The material on record shows that by a notice of motion dated 23rd April, 2021 the 2nd Interested Party applied to be joined as an Interested Party in the suit on the basis that he was the registered proprietor of the suit properties, that is, Title Nos. Nyandarua/Kipipiri/Lereshwa Block 1 (Malewa Ranch)/816 and 817. It would further appear from the record that vide a notice of motion dated 10th February, 2021 the 1st Interested Party also sought to be joined as an Interested Party in the suit and for the instant suit to be consolidated with ELC No. 777 of 2017 and Nyahururu CMCC No. 67 of 2019 which were said to be related to the instant suit.

2. The record further shows that the two applications were heard virtually before Hon. Justice John Mutungi on 27th July, 2021 who allowed the prayers for joinder of the 1st and 2nd Interested Parties but deferred the issue of consolidation. The honourable Judge then transferred the suit to the ELC at Nyahururu to deal with the suit and the application for consolidation. The said orders were made in the absence of the advocates for the 1st Interested Party who were unable to join the online platform for one reason or another.

B. THE 1ST INTERESTED PARTY’S APPLICATION

3. Aggrieved by the orders made on 27th July, 2021 allowing the 2nd Interested Party to be joined in the proceedings, the 1st Interested Party filed a notice of motion dated 21st September, 2021 under Section 3A of the Civil Procedure Act (Cap. 21), Order 12 Rule 7 of the Civil Procedure Rules and all enabling provisions of the law seeking the 2nd Interested Party. The application was based upon the grounds set out on the face of the application and the contents of the supporting affidavit sworn by George Gitamo Onsombi Advocate on 21st September, 2021. It was contended that the order of 27th July, 2021 did not have the input of the 1st Interested Party and that the log in link provided by the court on that date was erroneous. It was further contended that none of the parties shall suffer prejudice by allowing the application since they shall have an opportunity of being heard on the application for joinder.

C. THE 2ND INTERESTED PARTY’S RESPONSE

4. The 2nd Interested party, Ndungu Kariuki, filed a replying affidavit sworn on 12th October, 2021 in opposition to the application. He stated that the instant application was misconceived, frivolous and an abuse of the court process. He stated that as the registered owner of the suit properties , he was entitled to be heard in the proceedings and that the Plaintiff who filed the instant suit did not object to his joinder in the proceedings. He further stated that the court had unfettered discretion to allow joinder of parties at any stage of the proceedings and that the 1st Interested Party had not demonstrated what prejudice or injustice she shall suffer by the orders of 27th July, 2021.

D. DIRECTIONS ON SUBMISSIONS

5. When the application was listed for inter partes hearing on 30th September, 2021, it was directed that it shall be canvassed through written submissions. The parties were consequently given timelines within which to file and exchange their submissions. The record shows that the 2nd Interested Party filed his submissions on 28th October, 2021 whereas the 1st Interested Party filed hers on 10th November, 2021.

E. THE ISSUES FOR DETERMINATION

6. The court has considered the notice of motion dated 21st September, 2021, the replying affidavit in response thereto as well as the submissions of the parties. The court is of the opinion that the main issue for consideration is whether the 1st Interested party has made out a case for review, variation or setting aside of the orders made on 27th July 2021 allowing the joinder of the 2nd Interested Party.

F. ANALYSIS AND DETERMINATION

7. The court has considered the material and submissions on record. The gist of the 1st Interested Party’s grievance is that she was not heard before the 2nd Interested party’s application for joinder was allowed due to no fault of her own. She submitted that she had filed a replying affidavit in opposition to the application. She was of the opinion that there was no need of joining the 2nd Interested party as an interested party in the suit since the Plaintiff could have easily amended the plaint to make him a 2nd Defendant. The 1st Interested Party cited the case of William Ntomauta M’ethanga (sued as N’mauta Nkari) v Baikamba Kirimania [2017] eKLR in support of the application.

8. The 2nd Interested Party, on the other hand, submitted that the court was entitled to allow the joinder of a party at any stage of the proceedings for the purpose of effectually and completely adjudicating upon all the questions involved in the suit. He submitted that as the current registered proprietor of the suit properties he was entitled to be heard in the proceedings and that the court was right in granting his application. It was further submitted that the 1st Interested party had not demonstrated what prejudice, if any, she shall suffer as a result of such joinder. He therefore urged the court to dismiss the application with costs.

9. There is no dispute that the 2nd Interested Party is the registered proprietor of the suit properties. There is no dispute that he was never joined in the plaint as a party and that the court had at some point directed the Plaintiff to amend the plaint to join the registered owner as a party. In those circumstances, the Hon. Justice Mutungi was perfectly entitled to allow joinder of the registered owner even in the face of opposition by the 1st Interested Party.

10. The 2nd Interested Party’s interest in the proceedings was clearly established once he demonstrated that he was the current registered proprietor. Such order cannot be set aside or varied unless it is clearly demonstrated that the court misdirected itself and acted on wrong principles; that it took into account irrelevant considerations; that it failed to take into account relevant considerations; and that the decision was plainly erroneous. It is not enough to simply demonstrate that one of the parties was not present when the application for joinder was heard. The case of William Ntomauta M’ethanga (supra) which was cited by the 1st Interested Party concerned the setting aside of an ex parte judgment where the Appellant had shown a defence on the merits. It is, therefore, clearly distinguishable from the instant application challenging the joinder of an Interested party in a suit.

11. The court finds no grounds for review within the meaning of Order 45 of the Civil Procedure Ruleshave been demonstrated in the instant application. There is no evidence of any error on the face of the record or discovery of any new and important matter to warrant a review as known to law. There is absolutely no evidence to demonstrate that the 1st Interested Party shall suffer any prejudice or injustice as a result of the orders of 27th July, 2021.

G. CONCLUSION AND DISPOSAL

12. The upshot of the foregoing is that the court finds no merit in the 1st Interested Party’s notice of motion dated 21st September, 2021. The same is consequently dismissed with costs in the cause. The parties shall be at liberty to take a date for hearing the prayer for consolidation of suits in the notice of motion dated 10th February, 2021.

RULING DATED AND SIGNED AT NYAHURURU AND DELIVERED VIA MICROSOFT TEAMS PLATFORM THIS 27TH DAY OF JANUARY, 2022.

In the presence of:

No appearance for the Plaintiff

Mr. Kago for the 1st Defendant

Ms. Mungai holding brief for Mr. Rodi for 2nd Interested Party

No appearance for the 2nd Defendant

..........................

Y. M. ANGIMA

ELC JUDGE