[2018] KEELC 1456 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT KISII

CASE NO. 165 OF 2016

IRINE MWANGO ANASI

(Suing as the legal administratix of the Estate of

ABIGAEL KEMUNTO OPANDE – Deceased) …....………….……….. PLAINTIFF

VERSUS

JARED TOM NGITI OPANDE..…………....……………..……… 1ST DEFENDANT

STEVE NYAGAKA ORORA ………....…………………………. 2ND DEFENDANT

EEDI KENYA LIMITED ……….………..…………………...….. 3RD DEFENDANT

THE LAND REGISTRAR, KISII COUNTY..………………..…. 4TH DEFENDANT

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

INKA HOLDINGS LIMITED ………….….……………………. 6TH DEFENDANT

R U L I N G

1. On 17th November 2017 the 3rd defendant field a chamber summons application dated 31st October 2017 expressed to be made under Order 1 Rule 10(2) (4) and (25) of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the Civil Procedure Act. In the application the 3rd defendant sought the following orders:

1. That the name of INKA HOLDINGS LIMITED be enjoined in the suit as the 6th defendant.

2. That any such orders as this honourable court may deem fit to issue.

3. That the costs of the application be provided for.

2. The application was supported on the grounds set out on the face of the application and on the supporting affidavit sworn by one Dipen N. Dodhia, a director of the 3rd defendant on 31st October 2017. It was the 3rd defendant’s contention that the 6th defendant was a proper and necessary party to the suit having been an intermediate party in the change of ownership of the property, the subject of suit.

3. The firm of Nyandieka & Associates who hitherto had appeared for the 2nd defendant on 12th January 2018 filed a notice of appointment of advocate and a statement of grounds of opposition by the proposed 6th defendant and a replying affidavit by one Yunita Akumu a director of the proposed 6th defendant. The proposed 6th defendant contended that the court lacked the jurisdiction to entertain the intended claim by the 3rd defendant against the proposed 6th defendant upon joinder. The proposed 6th defendant averred that the 3rd defendant/applicant had not come to court with clean hands and that the application had not been made in good faith.

4. The 3rd defendant/applicant’s application was fixed for hearing on 15th January 2018. The court directed that the application be argued by way of written submissions and to be mentioned on 19th February 2018 for further directions. On 19th February 2018 all the parties save for the 4th and 5th defendants were represented. Mr. Kiprotich advocate appeared for the 3rd applicant. Mr. Ochwangi advocate for the plaintiff indicated that they were not opposed to the application for joinder. Mr. Mose Nyambega advocate held brief for Nyandieka advocate and sought extension of time to file submission on behalf of the proposed 6th defendant which they had not filed as earlier directed on 15th January 2018. The court directed that the 3rd applicant’s application be heard on 12th March 2018.

5. The matter was listed for the hearing of the 3rd defendant’s application on 12th March 2018. The plaintiff and the 3rd defendant were represented by their respective advocates but on the day there was no representation for the 2nd defendant and the proposed 6th defendant. The court upon hearing the advocates who were present delivered the following ruling on the 3rd defendant’s application:-

“The notice of motion dated 31st October 2017 by the 3rd defendant seeks to enjoin the intended 6th defendant as a party. I have considered the application and I am persuaded the intended 6th defendant is a necessary party whose presence is necessary to enable the real issues to be fully determined. The 3rd defendant seeks to claim against the intended 6th defendant as a co-defendant and he can only do so if the 6th defendant is enjoined in the suit. I exercise my discretion to allow the intended joinder of the 6th defendant as a party to these proceedings. The 3rd defendant/applicant is granted leave to amend his defence appropriately. The 6th defendant to be served with the pleadings filed herein by the 3rd defendant within the next 21 days from today. Matter to be mentioned on 10th April 2018 for further directions. The costs of the application dated 31st October 2017 will be in the cause.”

6. Following the delivery of the aforestated ruling the 6th defendant filed the Notice of Motion dated 19th March 2018 expressed to be made under the provisions of Section 1A, 1B and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The application inter alia seeks the following orders:-

1. That this honourable court be pleased to review and set aside its order given on 12th March 2018 and issued on 13th March 2018 by this honourable court.

2. That the 3rd defendant/respondent’s chamber summons application dated 31st October 2017 be heard inter partes.

3. Costs of the application be costs in the cause.

The application was supported on the following grounds set out on the body of the application and on the affidavit sworn in support thereof by Mr. Alfred Nyandieka advocate for the proposed 6th defendant.

1. The applicant is aggrieved by this honourable court’s orders of 12th March 2018.

2. The applicant was not heard on the application leading to the orders of 12th March 2018 due to an inadvertent mistake of its advocate on record.

3. There is new and important matter that explains the failure of the applicant to attend court on the 12th March 2018 to be heard.

4. There is an error apparent on the face of the record.

5. There are other sufficient reasons for review.

7. The plaintiff through her advocate, Mr. Philemon Ochwangi filed replying affidavit sworn on 19th March 2018 in opposition to the 6th defendant’s application while the 3rd defendant through its director Dipen N. Dodhia also filed a replying affidavit in opposition to the application sworn on 3rd April 2018.

8. On 10th April 2018 the court gave directions that the 6th defendant’s application be heard and be disposed first before any proceedings are taken in the case and further directed that the application be canvassed by way of written submissions. The applicant (6th defendant), the plaintiff and the 3rd defendant filed their respective submissions. I have perused and considered the 6th defendant’s application dated 19th March 2018 together with the affidavits sworn in support and in reply thereto including the annextures thereof. I have also considered the written submissions by the parties and the authorities referred to the court by the parties and the twin issues that arise for determination are as follows:-

(i) Firstly, whether the court properly proceeded to hear the 3rd defendant’s application on 12th March 2018 when the same was scheduled for hearing and if so, whether in allowing the joinder of the 6th defendant, the court exercised its discretion judiciously; and

(ii) Secondly, whether the 6th defendant has satisfied the conditions for review and/or has demonstrated sufficient cause to warrant the court to review or set aside its ruling/order of 12th March 2018.

9. On the first issue there can be no contest that the 3rd defendant’s application dated 31st October 2017 was scheduled for hearing on 12th March 2018. I have earlier on in this ruling given a rundown of the scheduling of the application for hearing on 15th January 2018 when the same was directed to be mentioned on 19th February 2018 to confirm compliance with the directions given respecting the disposal of the application. On 19th February 2018, Mr. Nyandieka advocate for the 2nd and the proposed 6th defendant was properly represented by Mr. Mose Nyambega advocate who sought extension of time for the 6th proposed defendant to file his submissions which was granted. It is at that court sitting the 3rd defendant’s application was fixed for hearing on 12th March 2018. The matter was appropriately listed for the hearing of the 3rd defendant’s application on 12th March 2018. Mr. Nyandieka advocate was not present and was not represented on the date. Equally he had not filed the response submissions on behalf of the proposed 6th defendant which he apparently filed on 13th March 2018 after the scheduled date of hearing.

10. The court on the basis of the foregoing was perfectly entitled to proceed with the hearing of the 3rd defendant’s application on 12th March 2018 as the date was given in court in the presence of all the interested and affected parties and there was therefore no issue as to whether or not all the parties had been served. Thus the issue would be whether the court having heard the parties before it and on the basis of the material placed before it, there was justification to grant the 3rd defendant’s application for the joinder of the 6th proposed defendant as it did.

11. Order 1 Rule 10(2) makes provision for joinder of parties and it provides thus:-

(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit be added.

12. It is clear that under the above provision the court has unfettered discretion to order the joinder of a party at any stage of the proceedings either on its own motion and/or on application by a party. The principal consideration before an order for joinder of a party to the proceedings is whether the presence of such a party is necessary in order to enable the court to effectually and completely adjudicate and settle all the issues arising in the suit. Thus, where the court is of the opinion that there may be issues and/or questions that such a party would be well placed to respond to and/or answer to enable the court to get a clearer picture of the issues and/or provide a basis for the court to effectually and completely adjudicate upon the issues, the court will order that such a party be enjoined to the proceedings.

13. In the present matter the 3rd defendant has stated that it acquired land parcel Nyaribari Chache/Keumbu/3303, 3304, 3305, 3306, 3307 and 3308 which were all registered in the name of Inka Holdings Limited, the 6th proposed defendant. The six parcels of land were all consolidated to form land parcel number Nyaribari Chache/Keumbu/ 3728 now registered in the name of the 3rd defendant. The plaintiff in the present suit claims that the land parcels Nyaribari Chache/ Keumbu/3303, 3304, 3305, 3306, 3307 and 3308 were fraudulent subdivisions from land parcel Nyaribari Chache/Keumbu/ 3017 owned by and registered in the name of Abigael Kemunto Opande (now deceased) represented in this suit by the plaintiff as the administrator of the estate. The plaintiff in the suit contends land parcel Nyaribari Chache/Keumbu/3017 was subdivided fraudulently when there was a subsisting prohibitory order of injunction. The plaintiff seeks the cancellation of the subdivisions and the restoration of the original land parcel Nyaribari Chache/Keumbu/3017. In effect the plaintiff wants the title created following the consolidation of the subdivisions being LR No. Nyaribari Chache/Keumbu/3728 registered in the 3rd defendant’s name cancelled.

14. The 3rd defendant filed a defence to the suit by the plaintiff dated 11th November 2016 where he averred that it purchased the suit properties after carrying out appropriate due diligence and that the properties were clear of any encumbrances. The 3rd defendant denied any knowledge of and/or being party to any fraudulent dealings leading to the subdivisions complained of by the plaintiff maintaining that it purchased the property for value without notice of any defect in the title. The 3rd defendant further pleaded that the properties have been amalgamated and now form one parcel LR No. Nyaribari Chache/Keumbu/3728.

15. The 3rd defendant acknowledging that its title to the various parcels of land prior to the amalgamation, acquired from the 6th defendant, were under challenge opted to file the instant application so that the 6th defendant is enjoined as a party to give account as to how it acquired ownership of the properties it sold to the 3rd defendant. It is the 3rd defendant’s assertion that having purchased the property from the 6th defendant and the title of that property before the sale to the 3rd defendant being under challenge by the plaintiff, the 6th defendant is a necessary party so that it could offer explanation as to how it came to own the property. The 3rd defendant further contends in the event the title the 6th defendant held before the sale is successfully impugned by the plaintiff, the 3rd defendant would be entitled to make a cross claim from the 6th defendant. It is in those circumstances that the 3rd defendant avers that the 6th defendant is a necessary party and relevant party to enable all the issues and questions that arise in the present suit to be adjudicated finally and completely.

16. The root of the title that the 3rd defendant holds in regard to the suit property LR No. Nyaribari Chache/Keumbu/3728 can be traced to the parcels of land namely Nyaribari Chache/Keumbu/3304 – 3308 which the 3rd defendant purchased from the 6th defendant before causing the same to be amalgamated to form land parcel Nyarbiari Chache/ Keumbu/3728. The plaintiff claims land parcels Nyaribari Chache/ Keumbu/3304-3308 were fraudulently created by subdividing of land parcel Nyaribari Chache/Keumbu/3017 which was registered in the name of Abigael Kemunto (deceased) now represented by the plaintiff as administrator of the estate.

17. The proposed 6th defendant in the replying affidavit sworn in opposition to the 3rd defendant’s application admitted that it was the registered owner of land parcels Nyaribari Chache/Keumbu/3304 – 3308 before selling them to the 3rd defendant. The 6th defendant averred that the 3rd defendant following the purchase took possession of the properties and subsequently amalgamated them to the current title Nyaribari Chache/Keumbu/3728. The 6th defendant further avers that the sale and transfer of the property to the 3rd defendant was successfully completed and there was no dispute at all that arose and/or was notified to the 6th defendant respecting the sale. The 6th defendant avers that the plaintiff’s suit only raises claims of fraud against the 1st, 2nd and 4th defendants who are separate and distinct from the 6th defendant and that no claim of fraud is alleged against the 3rd defendant by the plaintiff.

18. The 6th defendant further asserts that the 3rd defendant’s application is not brought in good faith as the agreement entered into between the 3rd defendant and the 6th defendant provided that any disputes arising out of the agreement would be referred to arbitration in terms of Clause 23 of the agreement and therefore the court lacked the jurisdiction to entertain such a claim as is contained in the notice of claim against co-defendant marked as exhibit “DND-11”.

19. The court upon appraisal of the material placed before it by the 3rd defendant in support of its application and the 6th defendant’s replying affidavit sworn in opposition was satisfied that there was necessity to enjoin the 6th defendant as a party to these proceedings so that all the issues in dispute in the suit may be completely adjudicated. The consideration the court made was that the property the 3rd defendant purchased from the 6th defendant was being challenged under grounds of fraud perpetrated by the 1st, 2nd and 4th defendants from whom the 6th defendant acquired the property from. There appears to have been a series of transactions which were initiated through the filing of Keroka SRMCC Succession Cause No. 4 of 2012 where the 1st defendant was issued letters of administration to the estate of Abigael Kemunto Opande (deceased). The letters of administration issued to the 1st defendant were revoked on 7th April 2016 vide a ruling made in Kisii HC Misc. Application No. 187 of 2012. Before the grant was revoked, the same had been utilized to cause the distribution of the deceased estate notwithstanding that the High Court had on 23rd May 2012 in the said Kisii HC Misc. Application No. 187 of 2012 issued a prohibitory order of injunction in the following terms:-

“There be and is hereby granted a prohibitory order of injunction and/or conservatory order restraining the respondent from disposing of, selling and/or appropriating the assets of Abigael Kemunto Opande, the deceased herein, more particularly, LR No. Nyaribari Chache/Keumbu/3017, in any manner whatsoever and/or howsoever, pending the hearing and determination of the summons herein.”

20. Notwithstanding the subsistence of the order of injunction the original land parcel Nyaribari Chache/Keumbu/3017was subdivided and the subtitles transferred out to third parties after the injunction was allegedly illegally removed. The subdivided titles were initially transferred to the proposed 6th defendant by the 1st and 2nd defendants in October 2014 and the 6th defendant in turn sold and transferred the subtitles to the 3rd defendant in March 2016 as per the abstracts of title and search certificates annexed as exhibits. These are the transactions that have been put to question by the plaintiff and in my view the proposed 6th defendant would not extricate itself merely by saying that its sale transaction with the 3rd defendant was completed and it gave title to the 3rd defendant. In the suit by the plaintiff, the issue does arise whether the 6th defendant had good title which it could pass to the plaintiff. The 6th defendant would need to establish that the title it passed to the 3rd defendant was good. The 3rd defendant would only look upon the 6th defendant to offer that explanation as the 3rd defendant in its dealing in regard to the suit property never dealt with the 1st and 2nd defendants. The 3rd defendant as the present holder of the titles would be entitled to seek answers to the allegations of fraudulent dealing from the party with whom it dealt.

21. In the premises, it is therefore my view that the 6th defendant would be a necessary party in these proceedings and I find no fault in the exercise of my discretion to have the 6th defendant enjoined in these proceedings. It is thus my finding that the exercise of my discretion on 12/3/2018 to order the enjoinment of the 6th defendant in this case was justified and was judicious.

22. On whether the applicant has satisfied and/or demonstrated any grounds upon which the court could review, vary and/or set aside the order for joinder of the 6th defendant as a party made on 12th March 2018 my answer is in the negative. Order 45 Rule 1 of the Civil Procedure Rules pursuant to which the applicant’s application is brought provides:-

45(1) Any person considering himself aggrieved-

(a) By a decree or order from which an appeal is allowed but from which no appeal has been preferred; or

(b) By a decree or order from which no appeal is hereby allowed.

And who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

23. For an applicant for review to succeed in an application for review such an applicant must demonstrate or show:-

(i) There has been discovery of important matter or evidence which was unavailable at the time the order and/or decree was made; or

(ii) There was some mistake or error apparent on the face of the record; or

(iii) There is some other sufficient cause;

(iv) The application is made without unreasonable delay.

24. In the present case the 6th defendant’s advocate states that his office inadvertently misdiarised the date the application was to be heard as 13th March 2018 instead of 12th March 2018. That would only be a mistake on the part of counsel which would certainly not qualify as a ground to warrant a review but perhaps one to seek to set aside an order that may have been obtained ex parte. In the present case, I do not consider that the proceedings of 12th March 2018 were ex parte as all the parties had notice and had filed their respective pleadings in regard to the 3rd defendant’s application dated 31st October 2017 save the 6th defendant had not filed its written submissions.

25. The decision to order the 6th defendant to be enjoined as a party did not turn on the submissions filed by the parties but on the consideration of the pleadings and the material on record. The court was persuaded that the 6th defendant was a necessary party in the proceedings. Considering that under Order 10 Rule (2) of the Civil Procedure Rules the court can even order the enjoinment of a party suo moto even where no party has made an application, the court was fortified that it was the proper and right thing to do for the ends of justice to be met. The 6th defendant will suffer no prejudice as he will have the opportunity to file his defence as appropriate and make an answer to the cross action by the 3rd defendant.

26. The 6th defendant in its response to the application had contended that the dispute between it and the 3rd defendant arose from the agreement of sale between them that had an arbitration clause and hence the same could only be handled through arbitration as provided in the agreement and the court has no jurisdiction to entertain the same. The dispute in this suit does not arise from the contract of sale between the 3rd defendant and the 6th defendant as that contract was fully performed. The dispute predates the agreement between the 3rd defendant and the 6th defendant. The issues in the suit as I have pointed out elsewhere in this ruling question the authenticity of the titles the 6th defendant acquired from the 1st and 2nd defendants which he subsequently sold and transferred to the 3rd defendant. The court has the jurisdiction to determine those issues.

27. The upshot is that I find no merit in the 6th defendant’s application dated 19th March 2018 and the same is hereby ordered dismissed with costs to the plaintiff and the 3rd defendant.

28. Orders accordingly.

RULING DATED, SIGNED and DELIVERED at KISII this 12TH DAY of OCTOBER 2018.

J. M. MUTUNGI

JUDGE

In the presence of:

M/s Ollando for the plaintiff

Mr. Godia for Mutua for the 1st defendant

Mr. Godia for Nyandieka for the 2nd and 6th defendants

Mr. Kiprotich for the 3rd defendant

N/A for the 4th and 5th defendants

Ruth Court assistant

J. M. MUTUNGI

JUDGE