[2013] KEHC 1987 (KLR)
The court found that the applicant, as the original registered owner of the suit property and the person who sold the disputed parcels to the defendant, has a direct and substantial interest in the outcome of the proceedings. The existence of a pending appeal involving the applicant and the plaintiff over the same...
Source-derived case information.
- Citation
- [2013] KEHC 1987 (KLR)
- Parties
- Plaintiff: Jackson Mwaniki Ndungu; Defendant: Peter Andeyo Vuhya; Applicant: __MISSING__
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 24 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder of Interested Party as Defendant
- Outcome
- application allowed
- Legal Topics
- Joinder of Parties, Land Ownership Disputes, Injunctive Relief, Boundary Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Mwaniki Ndungu
Plaintiff
Peter Andeyo Vuhya
Defendant
__MISSING__
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder of Interested Party as Defendant
Legal Issues
- 1 Whether the interested party should be enjoined as a defendant in the suit.
- 2 Whether the applicant has a sufficient interest in the subject matter of the suit to warrant joinder.
- 3 Whether the joinder would cause undue delay or prejudice to the existing parties.
Ratio Decidendi
The court found that the applicant, as the original registered owner of the suit property and the person who sold the disputed parcels to the defendant, has a direct and substantial interest in the outcome of the proceedings. The existence of a pending appeal involving the applicant and the plaintiff over the same land further strengthens the necessity of his participation. The court held that the rules on joinder are sufficiently broad to allow the applicant to be joined as a defendant, even if he is not interested in all the reliefs claimed. The court was not persuaded by the plaintiff's argument that the application was intended to delay the proceedings, noting that procedural...
Court Disposition
application allowed
Orders
- The interested party is joined as 2nd defendant in the suit.
- The interested party is directed to file and serve his statement of defence, documents, and witness statements within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HCC NO. 24 OF 2012
JACKSON MWANIKI NDUNGU ….......................... PLAINTIFF
VERSUS
PETER ANDEYO VUHYA................................... DEFENDANT
RULING
By an application dated 30th May 2012 the interested party sought to be enjoined as a party in the present suit. The applicant contends he was the registered owner of title No. E. Bukusu/S. Kanduyi/8830 which he subdivided and sold the numbered portions to the defendant herein. This makes him have an interest in the outcome of this suit. Further there is an appeal vide Bungoma HCCA No. 43 of 2006 still pending between the applicant and the plaintiff.
The application is opposed by the plaintiff who filed a replying affidavit on 25th July 2012. He avers the applicant has no business to be enjoined into the proceedings as there are no issues to be determined between the plaintiff and the applicant. The plaintiff/Respondent submits further that the applicant is only keen to delay this suit by the filing of the present application. According to him, the L.R. No. E. Bukusu/S. Kanduyi/8830is intact and no sub-division has been done on the ground.
I have perused the documents filed to follow up the history of the matter. There is no doubt there's an appeal pending in HCC 113 of 2006 regarding E. Bukusu/S. Kanduyi/8830. In it, from the memorandum of appeal there is an issue of boundary dispute. The defendant bought L.R'sE. Bukusu/S. Kanduyi/14796,14677and 14676 which was curved out of E. Bukusu/S. Kanduyi/8830. This is shown in the mutations marked PV1 in the affidavit of PETER ANJEYO VUHYAH sworn on 22nd March 2012.
The plaintiff/respondent already obtained orders of temporary injunction that stopped the defendant from carrying any development on this land parcels on the basis they are his. The applicant, therefore is right when he says the outcome of this suit will affect him. It is him who sold the defendant herein the parcels for which he has been sued. The earlier suits between him and the plaintiff regarding the dispute is also still pending. Under Order 1 Rule 3 provides;
“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act.... where if separate suits were brought against such persons any common question of law or fact would arise.”
Rule 5 “It shall not be necessary that every defendant shall be `interested as to all the relief claimed in any suit against him.”
It therefore follows that the interested party need not be interested to all reliefs claimed in the suit. I find that being the owner of the original suit parcel title No. E. Bukusu/S.Kanduyi/8830 for which reason the present defendant has been sued, he is thus entitled to participate. The defendant may have chosen to call him as a witness but since he has moved the court to be a party, this court finds no reason why he should be denied the request.
The plaintiff/respondent submits the application is intended to delay the trial of this suit. In their submissions, they did not explain how the delay will be occasioned. In any event timelines once set for the interested party to file their pleadings, the suit can always be listed for hearing. In the result, the application is allowed, the interested party is joined as 2nd defendant in this suit. He is directed to file and serve his statement of defence, documents and witness statements within 30 days from the date hereof. Costs in the application be cause.
RULING DATED this 8thday of October 2013
A. OMOLLO
JUDGE.