[2023] KEELC 452 (KLR)

Kahiga v Kahiga & 4 others (Environment & Land Case 1 of 2021) [2023] KEELC 452 (KLR) (2 February 2023) (Ruling)

Neutral citation: [2023] KEELC 452 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyeri

Environment & Land Case 1 of 2021

JO Olola, J

February 2, 2023

Between

James Kihungi Kahiga

Plaintiff

and

Bancy Wanja Kahiga

1st Defendant

John Kihungi Kahiga

2nd Defendant

Rose Watare Ndumbi

3rd Defendant

Surveyor Wangari of Nyeri (Deceased)

4th Defendant

David Maina Kamiru

5th Defendant

Ruling

1. By the chamber summons application dated February 24, 2022, David Maina Kamiru (the 5th defendant) prays for an order that the suit as against himself be struck out.

2. The application is supported by an affidavit sworn by the 5th defendant and is premised on the grounds:(i)That there is no cause of action disclosed against the 5th defendant by the plaintiff;(ii)That the action/claims against the 5th defendant herein are therefore unfounded and the continued presence of the 5th defendant in this suit is unnecessary and baseless; and(iii)That it is only in the interest of justice that the 5th defendant is struck out of this suit to enable this court to determine the issues herein with the correct parties.

3. James Kihungi Kahiga (the plaintiff) is opposed to the application. In his replying affidavit sworn on May 17, 2022, the plaintiff avers that he has established a substantial cause of action against the 5th defendant.

4. The plaintiff avers that the 5th defendant is part of the fraudulent syndicate as regards the illegal succession done by the 3rd defendant who purportedly caused land parcel Kabaru/Ngonde Block 6/Ngatha/40 to be registered jointly in the names of the 1st, 2nd and 3rd defendants. The plaintiff further avers that the 1st, 2nd and 3rd defendants together connived to illegally own, sub-divide and transfer the said parcel of land and thereupon to encroach upon the Plaintiff’s intended share of 2 acres of the land.

5. I have carefully perused and considered both the application and the response thereto. I have similarly perused and considered the submissions filed herein by the learned counsel representing the 5th defendant. I was unable to find any submissions filed by the Plaintiff.

6. By the application before me, the 5th defendant has urged the court to strike out the suit as against himself. It is the 5th defendant’s case that the suit as filed discloses no cause of action against him and that the claim made by the plaintiff against him is unfounded and his continued presence in the suit is unnecessary and without any basis.

7. The plaintiff on the other hand accuses the 5th defendant of being part of a fraudulent syndicate that caused the suit property to be registered jointly in the names of the 1st, 2nd and 3rd defendants. It is accordingly the plaintiff’s case that he has established a substantive cause of action against the 5th defendant and that he is therefore, a necessary party in these proceedings.

9. As was stated by Madan JA in DT Dobie and Company Kenya Limited v Joseph Mbaria Muchina and Another (1980) eKLR:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”

10. I have looked at the pleadings filed herein by both the plaintiff and the defendants. While indeed it is true that there is no prayer made by the plaintiff specifically against the 1st, 2nd, 3rd and 5th defendants, it was apparent to me that the grant of the orders sought to be issued against the Land Registrar Nyeri were likely to affect the 5Th defendant.

11. While the plaintiff’s pleadings could certainly do with some panel beating, it was clear that he accuses the 1st, 2nd and 3rd defendants of proceeding to evict him from the suit property, proceeding to sub-divide the same and transferring a portion thereof to the 5th defendant. That being the case, if the court were to order restoration of the original boundaries of the parcels of land as they were in January, 2021 when the Plaintiff contends he was evicted therefrom, it is clear that those orders would affect the 5th defendant who is said to have purchased his portion some 4 months later on May 24, 2021.

12. As has been stated time and again, striking out a pleading is a draconian act, which may only be resorted to in plain cases. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the court process, it must be allowed to proceed to trial.

13. In the circumstances herein I was not persuaded that there was any basis to strike out the suit as against the 5th defendant. It follows that I did not find any merit in the chamber summons dated February 24, 2022. The same is dismissed with costs to the plaintiff.

RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 2ND DAY OF FEBRUARY, 2023. J. O. OlolaJUDGEIn the presence of:Mr. Macharia holding brief for Gacheru for the 5th DefendantMr. James Kahiga – the Plaintiff present in personNo appearance for the other DefendantsCourt assistant - Kendi