[2015] KEELC 389 (KLR)
The court found that the copy of the title annexed to the supplementary affidavit showed the property had been transferred to Pancras Oyatsi on 4/6/1999, making him the registered owner at the time of the alleged transaction between the 1st defendant and the plaintiffs. As such, for the court to effectively and...
Source-derived case information.
- Citation
- [2015] KEELC 389 (KLR)
- Parties
- Plaintiff: Jestimore Simwenyi; Defendant: Samson Sichangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 594 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint and Enjoin 3rd Defendant
- Outcome
- application allowed
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Title Investigation, Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jestimore Simwenyi
Plaintiff
Samson Sichangi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint and Enjoin 3rd Defendant
Legal Issues
- 1 Whether the plaintiff should be granted leave to further amend the plaint and enjoin Pancras Oyatsi as the 3rd defendant.
- 2 Whether the addition of the 3rd defendant is necessary for the effective and complete adjudication of the dispute.
- 3 Whether the proposed amendment would occasion injustice to the existing parties.
Ratio Decidendi
The court found that the copy of the title annexed to the supplementary affidavit showed the property had been transferred to Pancras Oyatsi on 4/6/1999, making him the registered owner at the time of the alleged transaction between the 1st defendant and the plaintiffs. As such, for the court to effectively and completely determine the issues in dispute, it is necessary to enjoin Pancras Oyatsi as the 3rd defendant. The court exercised its discretion under Order 1 rule 10(2) of the Civil Procedure Rules 2010, holding that the amendment and joinder would not occasion injustice and are essential for the just resolution of the matter.
Court Disposition
application allowed
Orders
- The application dated 31/3/2013 is allowed as prayed.
- Leave is granted to further amend the plaint and enjoin Pancras Oyatsi as 3rd defendant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L 594 OF 2012
Formerly HCC 23 of 2010
JESTIMORE SIMWENYI........................................................PLAINTIFF
VS
SAMSON SICHANGI.............................................................DEFENDANT
RULING
The plaintiffs seek leave to amend the plaint further and add one Pancras Oyatsi the legally registered owner of the suit land as 3rd defendant in the suit on grounds that they have conducted an investigation and realized that the owner of the suit property is to intended 3rd defendant.
The application is supported by the supporting and supplementary affidavits of Rev Daniel Kwatuha the presiding Bishop of International Pentecostal Holiness Church (IPHC) Eldoret Highlands Conference and authorized by the Church and other plaintiffs to swear this affidavit who states that he has read and understood the replying affidavit of Pius Francis Omweri which is made in ignorance of the true factual picture that he was instructed by the Conference to investigate title herein to bring the transaction to a close as they need to develop the site and visited the Chief Land Registrars Offices with a copy of the title with a view of seeking to know how to transfer out interest.That the Registrar gave him the full particulars of the last registered owner of the land whom he seeks to enjoin herein. He later learned that the 1st defendant had not paid the purchase price hence the inability to pass any title to the plaintiffs.
The application is opposed by the 1st defendant through its director Pius Francis Omweri Nyaberi who states that Pancras Oyatsi the intended 3rd defendant is not a registered owner of the suit property and in any event the plaintiff has had no dealings with the registered owner.
The applicant submits that he requires leave of the Court to further amend the plaint and enjoin the 3rd defendant as a party to the suit to enable the court adjudicate to finality the issues touching land parcel UASIN GISHU.LR. NO. 23201/30 as the 1st defendant has no transferable interest capable of vesting tittle in the plaintiffs.
Citing various legal authorities which have been noted with approval Mr. Angu Kitigin argues that the court should freely allow amendments so long as the same would not occasion injustice.
Mr. Momanyi on the other hand argues that the plaintiffs have no evidence that they have had dealings with the 3rd defendants to warrant a suit against him and that this suit is purely to delay the case.
Order 1 rule 10(2) of the Civil Procedure Rules 2010 gives this court a wide discretion in addition of parties to suits. This can be done at any stage of proceedings, either upon or without the application of parties and on such terms, as may appear to the court just. The court has a discretion to do this to enable it effectively and completely to adjudicate upon and settle all questions involved in the suit.
The copy of the title was annexed in the supplementary affidavit of Rev Daniel Kwatuha which shows that the property was transferred to the intended 3rd defendant on 4/6/1999. This court finds that at the time of the alleged transaction between the 1st defendant and the plaintiffs, the parcel of land had been transferred to the 3rd defendant therefore for the court to determine the issues herein effectively and completely, the 3rd defendant ought to be enjoined.
Ultimately, this court allows the application dated 31/3/2013 as prayed. Costs in the cause.
DATED AND DELIVERED AT ELDORET THIS 4TH DAY OF FEBRUARY 2015
JUSTICE OMBWAYO ANTONY
ENVIRONMENT AND LAND COURT AT ELDORET
In the presence of: