[2014] KEHC 5955 (KLR)
The court found that the applicant's claim to plot No. 521 and the plaintiff's claim to plot No. 522 concern adjacent plots, and that enjoining the applicant as a party and directing a surveyor to identify the respective plots would serve the interests of justice. The absence of opposition to the application further...
Source-derived case information.
- Citation
- [2014] KEHC 5955 (KLR)
- Parties
- Plaintiff: Jane Wanjira Kimani; Defendant: Kamau Thiru Nguthiru; Defendant: The Town Clerk Olkejuado County; Defendant: The Olkejuado County Council; Applicant: Benson Waringu Thigu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 232 of 2011
- Procedural Posture
- Civil Case / Ruling on Application for Joinder and Survey Directions
- Outcome
- Application allowed with costs in the cause.
- Judges
- BT Jaden
- Legal Topics
- Joinder of Parties, Land Allocation Disputes, Adjacent Plots, Survey Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wanjira Kimani
Plaintiff
Kamau Thiru Nguthiru
Defendant
The Town Clerk Olkejuado County
Defendant
The Olkejuado County Council
Defendant
Benson Waringu Thigu
Applicant
Procedural Posture
Civil Case / Ruling on Application for Joinder and Survey Directions
Legal Issues
- 1 Whether the Interested Party should be enjoined as a party to the suit.
- 2 Whether the court should direct a surveyor to identify and allocate residential plots No. 521 and No. 522 to the respective parties.
Ratio Decidendi
The court found that the applicant's claim to plot No. 521 and the plaintiff's claim to plot No. 522 concern adjacent plots, and that enjoining the applicant as a party and directing a surveyor to identify the respective plots would serve the interests of justice. The absence of opposition to the application further supported granting the orders sought. The court exercised its discretion to allow the joinder and the survey directions to ensure all parties with an interest in the subject matter are before the court and that the dispute is resolved effectively.
Court Disposition
Application allowed with costs in the cause.
Orders
- The Interested Party is enjoined as a party to the suit.
- A surveyor from the 3rd Defendant shall visit the area and point out residential plot No. 521 to the Interested Party and residential plot No. 522 to the Plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 232 OF 2011
JANE WANJIRA KIMANI …………...…………….….………………… PLAINTIFF
VERSUS
KAMAU THIRU NGUTHIRU
THE TOWN CLERK OLKEJUADO COUNTY
THE OLKEJUADO COUNTY COUNCIL ................................. DEFENDANTS
BENSON WARINGU THIGU …......….............… INTERESTED PARTY/APPLICANT
R U L I N G
The application dated 10/7/2013 is brought under Order 40 Rule 1 of the Civil Procedure Rules Section 3A of the Civil Procedure Act and all enabling powers of the court and provisions of the law.
The application seeks the following orders:-
“(Spent).
(Spent).
That the Interested Party be enjoined as a party to this suit.
That the court be pleased to direct that a surveyor from the 3rd Defendant visit the area and point out residential plot No. 521 to the Interested Party and residentialPlot No. 522to the Plaintiff.
That the cost of this application be provided for.”
The Applicant’s case according to the affidavit in support sworn on 10/7/2013 is that the Applicant is one of the administrators of the estate of his late mother Njeri Thiru Ngithiru who was the administrator of the estate of the Applicants late father, Thiru Nguthiru. That the Applicant’s late father was the owner of plot No. 521 at Ongata Rongai within Olekejuado County Council, the plot having been allocated to her in the year 1978. The Applicant claims that it was the Respondent’s father who trespassed into the plot No. 521 which resulted to the filing of HCCC 2706/94, HCCC 1857/2001 and 2165/2007 prior to the filing of the instant suit. According to the Applicant, the Respondent filed the case herein against a non-existent party.
When the application came up for hearing on 8/10/13 there was no attendance for the Plaintiff or the Defendants through served. No papers were filed in opposition to the application. The application is therefore not opposed.
I have considered the application. It is noted that the Plaintiff’s claim is in regard to plot No. 522 while the Interested Party claims plot No. 521. These being adjacent plots, it would serve the interests of justice to allow the orders sought. Consequently, I allow the application with costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 12thday of March2014.
………………………………………
B. THURANIRA JADEN
JUDGE