[2019] KEHC 3120 (KLR)
The court found that the 1st Respondent would not suffer any prejudice if the 2nd Respondent was enjoined, as the debt had already been settled. The court noted that there was prima facie evidence of a sale agreement between the applicant and the 2nd Respondent, and the latter had not opposed the application....
Source-derived case information.
- Citation
- [2019] KEHC 3120 (KLR)
- Parties
- Applicant: Kennedy Otieno Ndege; Respondent: Family Bank Ltd; Respondent: Jackson Wanjala Wanambuko
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 28 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Joinder Application
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Joinder of Parties, Sale of Land, Discharge of Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Otieno Ndege
Applicant
Family Bank Ltd
Respondent
Jackson Wanjala Wanambuko
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Joinder Application
Legal Issues
- 1 Whether the 2nd Respondent should be enjoined as a party to the proceedings.
- 2 Whether the 1st Respondent would suffer prejudice if the application is allowed.
Ratio Decidendi
The court found that the 1st Respondent would not suffer any prejudice if the 2nd Respondent was enjoined, as the debt had already been settled. The court noted that there was prima facie evidence of a sale agreement between the applicant and the 2nd Respondent, and the latter had not opposed the application. Therefore, to ensure that all parties with a direct interest in the dispute were before the court and to facilitate the proper transfer of the property, the application to enjoin the 2nd Respondent was allowed.
Court Disposition
application allowed
Orders
- The 2nd Respondent is hereby enjoined as a party to the proceedings.
- The 2nd Respondent to be served with any pleadings within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
MISC. APPLICATION NO 28 OF 2018
KENNEDY OTIENO NDEGE...................................................APPLICANT
VERSES
FAMILY BANK LTD......................................................1ST RESPONDENT
JACKSON WANJALA WANAMBUKO......................2ND RESPONDENT
RULING
1. The application by the Applicant herein dated 1st of August, 2018 prays that the 2nd Respondent be enjoined in this application. The same is supported by his affidavit in support sworn on the same date. He stated inter alia that he entered into a Sale Agreement with the 2nd Respondent to purchase a portion of his parcel of land known as KITALE MUNICIPALITY BLOCK 13 /GATUA /439 on 3rd August, 2016.
2. That at the time of the said agreement the suit land was charged to the 1st Respondent for some amount and that the sale proceeds was to enable him discharge the said land. The 2nd Respondent has indeed paid the loan and his fear is that should the security be discharged then the 2nd Respondent who is yet to be a party in these proceedings shall not transfer the portion to him.
3. The 2nd Respondent did not file any response. The 1st Respondent vide the replying affidavit ofSLYVIA WAMBANI dated 11th June, 2019 has distanced itself from the application arguing that the 1st Respondent is not privy to the agreement between the Applicant and the 2nd Respondent. That the Respondent was willing to discharge the security and hand it over to the 2nd Respondent the owner. She prayed that the application be disallowed.
4. The court has perused the application and it is of the opinion that the 1st respondent has no prejudice to suffer if the application should be allowed. This is for the simple reason that the debt seemed to have been settled whether through the proceeds from the Applicant or any other source.
5. Prima facie it seems there was some understanding between the applicant and the 2nd Respondent as per the attached sale agreement. The said 2nd Respondent has not challenged the same by filing any opposition to the application.
6. In the premises the application is hereby allowed. Let the second respondent be served with any pleadings within the next 14 days from the date herein.
7. Costs in the cause.
Dated, signed, and delivered in open court at Kitale this 24th day of June, 2019.
__________________
H K. CHEMITEI
JUDGE
24/6/19
In the presence of:-
Mr Teti for Ambutsi for Applciant
None Appearence for the Respodnent
Court Assistant – Kirong
Ruling read in open court.