[2014] KEHC 2962 (KLR)
The court found that the Industrial & Commercial Development Corporation remains a necessary party to the suit because the charge it holds over LR NO. 2116/1143 is directly challenged as unlawful. The fact that one of the properties' titles was revoked does not render the entire suit moot, as the other property...
Source-derived case information.
- Citation
- [2014] KEHC 2962 (KLR)
- Parties
- Plaintiff: Kenya Anti-Corruption Commission; Defendant: Wilson Gacanja; Defendant: William Kipserem Busienei; Defendant: Industrial & Commercial Development Corporation
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 46 of 2010
- Procedural Posture
- Civil Suit / Ruling on Chamber Summons for Removal of Party
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Joinder of Parties, Statutory Power of Sale, Public Land Alienation, Injunctions, Charges on Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Anti-Corruption Commission
Plaintiff
Wilson Gacanja
Defendant
William Kipserem Busienei
Defendant
Industrial & Commercial Development Corporation
Defendant
Procedural Posture
Civil Suit / Ruling on Chamber Summons for Removal of Party
Legal Issues
- 1 Whether the third defendant, Industrial & Commercial Development Corporation, was wrongly enjoined in the suit and should be removed as a party.
- 2 Whether the applicant has any remaining interest in the suit properties, particularly LR NO. 2116/1143.
- 3 Whether the charge to ICDC over public land was unlawful and should not stand.
Ratio Decidendi
The court found that the Industrial & Commercial Development Corporation remains a necessary party to the suit because the charge it holds over LR NO. 2116/1143 is directly challenged as unlawful. The fact that one of the properties' titles was revoked does not render the entire suit moot, as the other property remains in dispute and the applicant's interest in it is central to the resolution of the case. The court emphasized that the presence of ICDC is essential for a complete and effective adjudication of the issues, particularly regarding the lawfulness of the charge and the reliefs sought by the plaintiff. Consequently, the application for removal of ICDC as a party was dismissed for...
Court Disposition
application dismissed with costs to the respondent
Orders
- The chamber summons dated 9/7/2012 seeking removal of the third defendant is dismissed.
- Costs awarded to the respondent, Ethics and Anti-Corruption Commission.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 46 OF 2010
KENYA ANTI-CORRUPTION COMMISSION …................. PLAINTIFF
VERSUS
WILSON GACANJA )
WILLIAM KIPSEREM BUSIENEI ) …........ DEFENDANTS
INDUSTRIAL & COMMERCIAL )
DEVELOPMENT CORPORATION )
R U L I N G
The third defendant/Applicant Industrial & Commercial Development Corporation (ICDC) filed a chamber summons dated 9th July, 2012 in which it seeks to be removed from the suit filed against it. The applicant contends that it was wrongly enjoined in the suit as it was merely a financier which advanced money to the second respondent who charged two properties in his name as security for the loan taken.
The applicant contends that the second respondent failed in repaying the loan advanced. It then exercised its statutory power of sale and sold the two properties charged to third parties. The applicant further contends that the suit has been overtaken by events as one of the properties title was cancelled by the Registrar of titles vide Gazette Notice No. 1582 of 26/11/2010.
The application is opposed by the respondent Kenya Anti Corruption Commission now known as Ethics and Corruption Commission through replying affidavit sworn and filed in court on 23/5/2013. The respondent contends that the applicant is a necessary party to the suit and should therefore not be struck out as contended by the applicant. The respondent further contends that if the applicant has no interest in the suit properties, it should have registered a discharge of charge and the purchasers of the suit properties would have then been registered as owners of the said properties.
I have gone through the application as well as the pleadings in this case. There are two suit properties in issue. These are LR NO. 2116/1143 IR NO 61522 and LR NO 2116/1144 IR NO 6151. These two properties were excised from Land reserved for Kenya National Library Services Board. Kenya National Library Services being a public body, the respondent contends that its land was not available for alienation by the then Commissioner of Lands Wilson Gacanja who is the first defendant in the suit. The public land was alienated and given to William Kipserem Busienei who in turn charged the same to ICDC to secure a loan of Kshs. 3,000,000/=.
The Registrar of Titles vide Gazette Notice NO 15582 of 26/11/2010 revoked title in respect of LR NO 2116/1144. Title in respect of LR NO. 2116/1143 was not revoked. One of the issues in the plaint is that the charge to ICDC was unlawful and should not stand. This is why the respondent filed an application for injunction against the applicant and William Kipserem Busienei. An injunction was granted in favour of the respondent. This injunction was restraining the 2nd and 3rd defendants from selling the suit properties or in any way interfering with the same. It is therefore clear that the suit as relates to LR NO 2116/1143 is still pending. The applicant cannot therefore seek to come out of the same. The upshot of this is that the application dated 9/7/2012 lacks merit. The same is hereby dismissed with costs to the respondent, the Ethics and Anti Corruption Commission.
It is so ordered.
Dated, signed and delivered at Kitale on this 17th day of September, 2014.
E. OBAGA
JUDGE
In the presence of Mr Ingosi for Mr Khakula for 3rd defendant and Mr Momanyi for M/S Christine Natome for plaintiff. Court Clerk – Kassachoon.
E. OBAGA
JUDGE
17/9/2014