[2012] KEHC 3683 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL CASE 48 OF 2012

HATHAWAY LIMITED..........................................................................................PLAINTIFF

V E R S U S

1. ADAN HAJI ALI...................................................................................1ST DEFENDANT

2. JUMA ALI CHINGUNIA OR CHIGUNIA.............................................2ND DEFENDANT

3. JUMA SULEIMAN MWAKUHENZA.................................................3RD DEFENDANT

4. JUMA RAMAKHERI..........................................................................4TH DEFENDANT

5. OMARI RASHID CHIRINZO.............................................................5TH DEFENDANT

6. LAND REGISTRAR (KWALE)........................................................ 6TH DEFENDANT

7. ATTORNEY GENERAL.....................................................................7TH DEFENDANT

8. COUNTY COUNCIL OF KWALE..................................................... 8TH DEFENDANT

RULING

1. The County Council of Kwale, the 8th Defendant, wants an early exit from these proceedings. I am asked to have the Plaints suit against it struck out as a prefatory issue.

2. The Plaintiff’s case is that it is the absolute proprietor and indefeasible owner of land described as Kwale/Galu/Kinondo/41, 42, 43, 44 and 45. The Plaintiffs grievance is that portions 41, 42 and 45 have been unlawfully registered in name of the 1st Defendant. It is the Plaintiffs contention that the transactions leading to the registration are fraudulent and sets out the roles of the Defendants in this fraud. The particulars of fraud are in paragraph 17 of the plaint.

3. The Plaintiffs cause of action against the 8th Defendant is in paragraph 17(h) of the plaint which reads;

“The 8th Defendants fraudulently, deliberately and/or illegally decline to grant consent to the Plaintiff to develop the suitland.”

As a consequence the plaintiff prays that the 8th Defendant be compelled to give approval of building plans to enable the Plaintiff to develop its property.

4. The 8th Defendants counsel thinks that its client is misjoinded to this suit whose central issue relates to ownership of land. That the orders sought against it cannot be properly considered and determined in these proceedings. I am also told that the Plaintiffs grievance against the 8th Defendant is a matter which should be dealt with under the Physical Planning Act (Chapter 286). That the statute provides the procedure for challenging rejection of Development Permission by Local Authorities. This court is aware that Section 15 of that Act gives a right to any person aggrieved by a decision of the National Liason Committee to appeal to the High Court. It is argued by the 8th Defendant that the role of the High Court is limited to entertaining appeals under that Section and that the High Court is not the first port of call.

5. I have looked at the pleadings before me and considered the rival submissions by counsel. If the Plaintiff feels aggrieved by the decision of the 8th Defendant in respect to the Development permission then it is entitled to challenge that decision and seek redress. The question is whether the procedure for redress in the Physical Planning Act ousts the jurisdiction of this court. This is a question that should be left to the full argument by the parties, more so because of the provisions of Section 13(2) (a) of The Environment and Land Court Act. That Section empowers the Environment and Land Court to hear and determine, amongst other disputes, those relating to land use planning. In the event the court was to hold that the Plaintiff should first exhaust the procedure under the Physical Planning Act then it must decide, as a corollary, whether the suit is for staying or for striking out. These matters were not addressed by Counsels in their arguments.

6. It seems to me that it is untidy to lump the issue of the development permission between the Plaintiff and the 8th Defendant with a private contest as to ownership of land. On the face of it there is no correlation and there may be misjoinder. But should this defeat the suit?

7. On this I turn to the self-speaking provisions of Order 1 Rule 9 of The Civil Procedure Rules which provides an answer-

“No suit shall be defeated by reason of the misjoinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” (emphasis mine)

8. As would now be obvious I am for disallowing the application for striking out. I am not sufficiently persuaded that I should make such a draconian order. The 8th Defendant may feel unfairly burdened by proceedings which in its view are hopeless. The eventual outcome of these proceedings may vindicate this feeling. An order of costs, in my view, would in some measure compensate for any inconvenience suffered. The result is that the Preliminary Objection is dismissed with costs.

Dated and delivered at Mombasa this 21st day of June, 2012.

F. TUIYOTT

JUDGE

Dated and delivered in open court in the presence of:-

Mlandi for Kiarie for the Plaintiff

No appearance for 1st, 6th, 7th and 8th Defendants

Asige for Tindi for 2nd, 3rd, 4th and 5th Defendants

Court clerk - Moriasi

F. TUIYOTT

JUDGE