[2016] KEELC 233 (KLR)
The court found that the 6th Defendant had no interest in the suit property, as both the Plaintiffs and the 6th Defendant confirmed his interest was in a different parcel of land (Plot No. 102). The Plaintiffs' claim against the 6th Defendant was based solely on alleged harassment via police, which constituted a...
Source-derived case information.
- Citation
- [2016] KEELC 233 (KLR)
- Parties
- Plaintiff: Joseph Karisa; Plaintiff: Harisson Changawa; Plaintiff: Michael Sulubu; Plaintiff: Eric Jeno; Plaintiff: Harrison Changawa; Plaintiff: Erick Jeno; Plaintiff: Kalu Birya; Plaintiff: Wanje Mwandori; Plaintiff: Tom Lewa; Plaintiff: Shida Charo; Plaintiff: Baraka Wanje; Plaintiff: Furaha Wanje; Plaintiff: Mwalimu Nzai; Plaintiff: Paulo Ngumbao; Plaintiff: Garama Kazungu; Plaintiff: Rama Charo; Plaintiff: Baraka Mtawali; Plaintiff: Danie Nzai; Plaintiff: Daniel Fondo; Plaintiff: Kazungu Kupeka; Defendant: Abdullaihim Junduin; Defendant: Azziz Abdulaihim; Defendant: Suleiman Abdulaihim; Defendant: Rashid Abdulaihim; Defendant: Saidi Abdulaihim; Defendant: Suleiman Said
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 1 of 2016
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit Against 6th Defendant
- Outcome
- Application allowed; suit against 6th Defendant struck out with costs.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Joinder of Parties, Striking Out Suit, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Karisa
Plaintiff
Harisson Changawa
Plaintiff
Michael Sulubu
Plaintiff
Eric Jeno
Plaintiff
Harrison Changawa
Plaintiff
Erick Jeno
Plaintiff
Kalu Birya
Plaintiff
Wanje Mwandori
Plaintiff
Tom Lewa
Plaintiff
Shida Charo
Plaintiff
Baraka Wanje
Plaintiff
Furaha Wanje
Plaintiff
Mwalimu Nzai
Plaintiff
Paulo Ngumbao
Plaintiff
Garama Kazungu
Plaintiff
Rama Charo
Plaintiff
Baraka Mtawali
Plaintiff
Danie Nzai
Plaintiff
Daniel Fondo
Plaintiff
Kazungu Kupeka
Plaintiff
Abdullaihim Junduin
Defendant
Azziz Abdulaihim
Defendant
Suleiman Abdulaihim
Defendant
Rashid Abdulaihim
Defendant
Saidi Abdulaihim
Defendant
Suleiman Said
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit Against 6th Defendant
Legal Issues
- 1 Whether the 6th Defendant has any legal interest in the suit property to justify his inclusion as a defendant.
- 2 Whether the suit against the 6th Defendant should be struck out for being scandalous, frivolous, or vexatious.
Ratio Decidendi
The court found that the 6th Defendant had no interest in the suit property, as both the Plaintiffs and the 6th Defendant confirmed his interest was in a different parcel of land (Plot No. 102). The Plaintiffs' claim against the 6th Defendant was based solely on alleged harassment via police, which constituted a distinct cause of action unrelated to the present land ownership dispute. Therefore, the inclusion of the 6th Defendant in the suit was without basis, and his joinder was deemed scandalous, frivolous, and vexatious. The court allowed the application to strike out the suit against the 6th Defendant.
Court Disposition
Application allowed; suit against 6th Defendant struck out with costs.
Orders
- The suit and/or Originating Summons dated 5th January, 2016 against the 6th Defendant is struck out with costs to the 6th Defendant.
- Costs of the application to be provided for.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 1 OF 2016 (OS)
1. JOSEPH KARISA
2. HARISSON CHANGAWA
3. MICHAEL SULUBU
4. ERIC JENO
5. HARRISON CHANGAWA
6. MICHAEL SULUBU
7. ERICK JENO
8. KALU BIRYA
9. WANJE MWANDORI
10. TOM LEWA
11. SHIDA CHARO
12. BARAKA WANJE
13. FURAHA WANJE
14. MWALIMU NZAI
15. PAULO NGUMBAO
16. GARAMA KAZUNGU
17. RAMA CHARO
18. BARAKA MTAWALI
19. DANIE NZAI
20. DANIEL FONDO
21. KAZUNGU KUPEKA...............................................................PLAINTIFFS
=VERSUS=
1. ABDULLAIHIM JUNDUIN
2. AZZIZ ABDULAIHIM
3. SULEIMAN ABDULLAIHIM
4. RASHID ABDULLAIHIM
5. SAIDI ABDULLAIHIM
6. SULEIMAN SAID...................................................................DEFENDANTS
R U L I N G
1. What is before me is the Application dated 25th February, 2016 filed by the 6th Defendant.
2. In the Application, the 6th Defendant is seeking for the following reliefs.
(a) THAT the suit and or Originating Summons dated 5th January, 2016 against the 6th Defendant be struck out with cost to the 6th defendant
(b) THAT cost of the application to be provided for.
3. The Application is grounded on the 6th Defendant's deposition that he does not have an interest over the suit property; that it is not true that he has been harassing the Plaintiffs and that his interest is on Plot No. 102 which is distinct from the suit property.
4. According to the 6th Defendant, he only reported to the police when the 13th Plaintiff together with other people invaded his land and that the said 13th Plaintiff together with others were charged in court for forcible entry.
5. In the Grounds of Opposition, the Plaintiffs advocate averred that the suit as against the 6th Defendant is merited because of his interference with the Plaintiffs' peaceful possession of the suit property; that the issue raised in the current Application should be ventilated at the hearing and that the determination of the land that is occupied by the Plaintiffs shall be determined at the hearing.
6. In the Originating Summons the Plaintiffs are asking this court to declare them as the owner of land measuring approximately 20 acres being a portion of Land Reference No. Portion No. 161 B having adversely occupied it for over twelve (12) years.
7. According to the Originating Summons, the suit property should be subdivided into two portions with 15 acres being allocated to the Plaintiffs and the 1st to the 5th Defendants to keep the remainder of the land.
8. In the grounds in support of the Originating Summons, the Plaintiffs have averred as follows:-
“The Plaintiffs have always lived in this land believing that it was unregistered land until lately when the 6th Defendant who has no known claim over the land started harassing the Plaintiffs by misuse of police force from Malindi Police Station.”
9. It is therefore obvious, as deponed by the Plaintiffs and the 6th Defendant, that the 6th Defendant has no interest whatsoever in the suit property. His interest is in respect to a different piece of land.
10. Consequently, the Plaintiffs have no basis in suing the 6th Defendant considering that their claim is to be declared the owners of 15 acres of the suit property.
11. If the Plaintiffs' position is that the 6th Defendant is harassing them using the police, then their cause of action as against the 6th Defendant is distinct from the present claim.
12. In the circumstances, I find that the suit as against the 6th Defendant is likely to embarrass the 6th Defendant who has no interest in the suit property. The joinder of the 6th Defendant in this matter is scandalous, frivolous and vexatious.
13. For those reasons, I allow the Application dated 25th February, 2016 as prayed.
Dated, signed and delivered in Malindi this 14thday of November, 2016.
O. A. Angote
Judge