[2021] KEELC 4729 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

ELC CASE NUMBER 423 OF 2008

JOSPHAT MACHARIA. .......................................................1ST PLAINTIFF

CHARLES MACHARIA GAKENGE.................................... 2ND PLAINTIFF

PETER AZEI. .........................................................................3RD PLAINTIFF

MILTON N. MAHUGU. ....................................................... 4TH PLAINTIFF

JAMES MINA MUTUATO.....................................................5TH PLAINTIFF

ADANGA AGISU...................................................................6TH PLAINTIFF

OBIRI MORARA. ................................................................7TH PLAINTIFF

EVANS MUSHEGA MUGILWA. ..........................................8TH PLAINTIFF

SAMUEL KIBE KIARIE.........................................................9TH PLAINTIFF

CHRISTOPHER OKEMWA...............................................10TH PLAINTIFF

PATRICK ANDAYI. .............................................................11TH PLAINTIFF

STEPHEN M WAIRE............................................................12TH PLAINTIFF

CHARLES NJAGI KIBABAI. .............................................13TH PLAINTIFF

GERALD KIMARI................................................................14TH PLAINTIFF

JOSECK THUO NGETA. .....................................................15TH PLAINTIFF

ROBINSON K OLAKI.........................................................16TH PLAINTIFF

MAURICE ONYANGO ODHIAMBO. ...............................17TH PLAINTIFF

JOHN MBUGUA KABUCHO. ...........................................18TH PLAINTIFF

TITUS SAMWEL KASWAILI...............................................19TH PLAINTIFF

TITUS AGISU MBEVA. .......................................................20TH PLAINTIFF

DAVID KITANGALA AGISU................................................21ST PLAINTIFF

STARBON ONACH AGISU................................................22ND PLAINTIFF

GEOFREY HENRY WANDABWA.......................................23ND PLAINTIFF

LEVI OYUGI MUGILWA. ..................................................24RD PLAINTIFF

PATRICK KINYOLO MBITHI. ..........................................25TH PLAINTIFF

A ANSELM NJOGU KIGOMO. .........................................26TH PLAINTIFF

FREDRICK NDUGIRE MWANGI. ......................................27TH PLAINTIFF

KENNEDY MULANDI MALINDA. ......................................28TH PLAINTIFF

WINSTON WINNER SASATI. .............................................29TH PLAINTIFF

JAMES OWONDO RATTA..................................................30TH PLAINTIFF

SIMON MUTELA JUDAH. ...................................................31ST PLAINTIFF

JOSEPH MACHARIA RUKU...............................................32ND PLAINTIFF

LAWRENCE MUTUA MWIKIA. ..........................................33ND PLAINTIFF

SAMSON K. KIMOTHO......................................................34TH PLAINTIFF

MR & MRS. MIKE NDAWA MWIKYA.................................35TH PLAINTIFF

SOLOMON KIRUMBA........................................................36TH PLAINTIFF

WILLIAM ITAMBI MWADIME............................................377H PLAINTIFF

GORDON R W WANDIO. ..................................................38TH PLAINTIFF

LEONIDAS KAMENDE.........................................................39TH PLAINTIFF

MUENI KAMENDE.................................................................40TH PLAINTIFF

GRACE MUTHONI CHEGE..................................................41ST PLAINTIFF

REGINA WAMBUI KAARA..................................................42ND PLAINTIFF

ROSE MUTHONI THUO......................................................43RD PLAINTIFF

JULIA WAMBURA KINAI. ...................................................44TH PLAINTIFF

EVA WANJIKU WAMBUGU.................................................45TH PLAINTIFF

CHRISTINE MBINDU MUSYOKA........................................46TH PLAINTIFF

FRIDAN WANDIA KABUI.....................................................47TH PLAINTIFF

ALICE NALIAKA SHITAMBASI...........................................48TH PLAINTIFF

BETH WANJIKU G................................................................49TH PLAINTIFF

KENYA ASSEMBLIES OF GOD CHURCH

(Suing through Isaac kasili, Casper Musungu

and Harun Kahuki)..................................................................50th PLAINTIFF

VERSUS

LELTAYET COURT DEVELOPERS LTD..............................1ST DEFENDANT

FUELEX KENYA LIMITED...................................................2ND DEFENDANT

RULING

1. This is a Ruling in respect of a notice of motion (sic) dated 16th June 2020 in which the Applicants seek to be enjoined in these proceedings as Plaintiffs. The dispute herein relates to LR No.22143 (suit property) which is at Komarock area of Nairobi. The 1st and 2nd Defendants had entered into an agreement whereby the 2nd Defendant was to purchase the suit property. The suit property was transferred to the 2nd Defendant but the 2nd Defendant was unable to clear the purchase price.

2. The 1st and 2nd Defendants entered into a memorandum of understanding in which it was agreed that the suit property which was 10 acres was to be subdivided into sub-plots which were to be sold in order to raise money for refund of the amount which the 2nd Defendant was owed. It is on this understanding that the sub-divided plots were sold to various persons who took possession.

3. The agents of the 2nd Defendant later went to the ground and threatened to evict the purchasers of the sub-plots. This is what made the Plaintiffs to move to court. There were originally twenty Plaintiffs. Thirty more Plaintiffs were enjoined in the suit making a total of fifty Plaintiffs. The Applicants who purchased the sub-plots which were being sold by the 1st Defendant have now also applied to be enjoined as they purchased the sub-plots from the 1st Defendant.

4. The 2nd Defendant has opposed the Applicants application based on a replying affidavit sworn on 26th June 2020. The 2nd Defendant contends that the Applicants application is brought in bad faith and that the Applicants have been aware of this suit which was filed in 2008. The 2nd Defendants also argues that the Applicants have not explained the delay in filing this application.

5. The 2nd Defendant further argues that the Applicants have no privity of contract with it as they purchased their respective plots from the 1st Defendant who had no capacity to sell the same as the 2nd Defendant is the registered owner of the suit property. The 2nd Defendant further argues that the Applicants are seeking to avoid the limitation period by seeking to be enjoined this suit.

6. I have considered the Applicants’ application as well as the opposition to the same by the 2nd Defendant. I have also considered the submissions filed. The only issue for determination is whether the Applicants have demonstrated that they have sufficient interest in this matter to warrant their joinder. There is no doubt that all the fifty Plaintiffs in this suit bought their respective plots from the 1st Defendant. The three Applicants also purchased their plots from the 1st Defendant. It is therefore clear that they have common issues which can be addressed in this matter. At this stage, the court’s concern is to determine whether the Applicants have demonstrated that they are entitled to be enjoined in these proceedings.

7. As the Applicants purchased their plots from the 1st Defendant, just as the other existing fifty Plaintiffs, I find that the Applicants should be enjoined in this case as the 51st, 52nd and 53rd Plaintiffs respectively. The Plaintiff shall be amended accordingly to reflect the three as Plaintiffs. They should then be served with pleadings in this case. The amendments should be done within 14 days. Costs of this application shall be in the cause.

It is so ordered.

Dated, Signed and Delivered at Nairobi on this 25th day of February 2021.

E.O.OBAGA

JUDGE

In the Virtual presence of:-

Mr Kegode for Applicants

Mr Omondi for Mr Gachie for Plaintiff

Mr Gititu for Mr Munyororo for 2nd Defendant

Court Assistant: John

E.O.OBAGA

JUDGE