[2022] KEELC 14917 (KLR)

Kenya Electricity Transmission Company Limited v Biego & 14 others; Bett & 2 others (Proposed Defendant) (Environment & Land Case 96 of 2021) [2022] KEELC 14917 (KLR) (17 November 2022) (Ruling)

Neutral citation: [2022] KEELC 14917 (KLR)

Republic of Kenya

In the Environment and Land Court at Kapsabet

Environment & Land Case 96 of 2021

MN Mwanyale, J

November 17, 2022

(FORMERLY ELDORET 4 OF 2021)

Between

Kenya Electricity Transmission Company Limited

Plaintiff

and

Kibii Arap Biego

1st Defendant

Emily Cheptoo Meli

2nd Defendant

John Kibiwot Kiplagat

3rd Defendant

Priscillah C. Simotwo

4th Defendant

Mark Nafula

5th Defendant

Asha Nafula

6th Defendant

Chegugu Stanley Magray

7th Defendant

Eliud Kipkorir

8th Defendant

Rosemary Chelagat Koskei

9th Defendant

Kiprono Arap Chesasur & Alex Mwarabu Agui

10th Defendant

Joshua Kimeli Yego & Leah Jebitok Saina (the Administrators of the Estate of Kibiego arap Tuwei)

11th Defendant

Kibiwot Arap Chemuiywa

12th Defendant

Cleophas Kipketer Sugut (the Administrator Of The Estate Of The Late Kipsugut Arap Chepsiror)

13th Defendant

Jackson Kibet Sirem

14th Defendant

Cheruto Tablelei Biren

15th Defendant

and

Joyceline Jerop Bett

Proposed Defendant

Gilbert Sawe

Proposed Defendant

Grace Jepketer Kogo

Proposed Defendant

Ruling

1. Before me for determination is an application dated May 26, 2022 brought under section 1A, 1B,3A and 63 (e) of the Civil Procedure Act and order 1 rule 10 (2) of the Civil Procedure Rules seeking the following orders:-i.This honourable court be pleased to grant leave to the applicants Joyceline Jerop Bett, Gilbert Sawe, William Kipkosgei Mosbei and Grace Jepketer Kogoi to be enjoined as 16th, 17th and 18th defendants in this suit.ii.The court be pleased to grant leave to the applicants to file pleadings in this suit.iii.Costs be in the cause.

2. The application is premised on grounds on the face of it and supported by affidavits of Joyceline Jerop Bett, Gilbert Sawe, William Kipkosgei Mosbei and Grace Jepketer Kogoi.

3. The applicants deponed in their respective affidavits that the 4th, 13th and 14th defendants extinguished their rights and interest over suit parcels of land upon sale of the same to the applicants.

4. As a result the applicants have a legitimate interest in the suit properties hence the need to be enjoined as defendants.

5. The application was opposed vide grounds of opposition dated October 3, 2022 and filed by the plaintiff/respondent. The plaintiff stated that the instant application presented conflict of interest between the defendants and intended defendants (applicants herein). That this was contrary to the Code of Standards of Professional Practice and Ethical conduct of the Law Society of Kenya, 2016.

6. On September 22, 2022 this court directed that the application be canvassed by way of written submissions. Both parties complied by filing their respective submissions.

7. Counsel for the applicants submitted that the applicants had shown their interest in the sit parcels vide the sale agreements annexed to the instant application. That the applicants are necessary parties and their enjoinment would enable the court effectively and completely adjudicate upon all issues in this suit. They relied on order 1 rule 10 (2) of the Civil Procedure Rules and the case of Gladys Nduku Nthuki -vs- Letshego Kenya Limited; Mueni Charles Maingi (intended plaintiff)2022 eKLR to buttress this position.

8. The plaintiff/respondents Counsel on the other hand submitted that the actions of Counsel for the applicants to file this application while representing the defendants in this suit amounted to breach of the Code of Standards of Professional Practice and Ethical Conduct of the Law Society of Kenya, 2016 which under rules 95 and 96 prohibits representation of clients with conflicting interest over the same matter. Counsel relied in the case of Abdirahman Husseinwaytan Mohammed -vs- Independent Electoral and Boundaries Commission and 4 others (2018) eKLR.

Analysis and Determination: - 9. Upon perusal of the application, affidavits in support, plaintiff/respondent grounds of opposition as well as submissions filed by respective parties, the sole issue for determination by this court is whether the applicants have made a case to enable this court enjoin the intended defendants as a party and further grant them leave to file pleadings.

10. Under order 1 rule 10 (2) of the Civil Procedure Rules this court has discretion, either on application by a party to a suit or its own motion, order the joining in top the suit of any party or striking out of a party improperly joined to the suit. Order 1 rule 10 (2) of the Civil Procedure Rules provides that;-“The court may of any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order the name of any party improperly joined, whether as a plaintiff or defendant, be struck out and the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

11. Another provision relevant in this application is order 1 rule 3 of the Civil Procedure Rules which is drawn as follows: -“All persons may be joined as defendants against whom any right to relief in act or transaction or series of acts of transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.”

12. My understanding of the provisions cited herein above is that the court is empowered order a joinder of a defendant if the claim against him arises out of the same act or transaction complained of by the plaintiff. In other words the plaintiff ought to have a case against the intended defendant.

13. In the present case, the applicants argument is that on diverse dates, they purchased the suit parcels from the 4th, 13th and 14th defendants who are the registered owners of the said properties. That as a result they have beneficial interest over the properties which the plaintiff are seeking way leave and in exchange give compensation to the owners of the suit properties.

14. In my view, it is necessary to bring on board the applicants, who claim, beneficial interest over suit properties to enable the court effectively determine the issue of ownership as well as arbitrate over issues raised by the plaintiff. I find so because even if after hearing the suit, the court was to grant the plaintiff the orders sought, those orders would not be enforced the applicants and not the 4th, 13th and 14th defendants. It would also be unjust to determine issues affecting the suit properties without hearing the Applicants, who claim interest thereof.

15. On the issue of conflict, once the applicants are joined in the proceedings, they will be all defendants, hence the issue of conflict of interests does not arise.

16. That said, counsel for the respondent raised an issue of delay in filing the instant application. I do think this is so. This suit was filed in January 2021 and the instant application filed in Ma 2022 1 year, 5 months later. This delay is not in ordinate furthermore, hearing of this suit had not taken off. Also the plaintiff has not sufficiently demonstrated prejudice they will suffer if this application is allowed.

17. In order to adjudicate upon all issues and do substantive justice to all parties, I find the application dated May 26, 2022 meritorious and allow the same.

18. Orders accordingly.

DATED AT KAPSABET THIS 17THNOVEMBER, 2022. HON. M. N. MWANYALE,JUDGEIn the presence of;Mr. Lagat holding brief for Ms. Koech for Defendant/ApplicantNo appearance for Ms Gezemba for Plaintiff