[2012] KEHC 4947 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 52 OF 2011

LEMUNDIAM OLE RONKO……...………………..PLAINTIFF

VERSUS

NAROPIL ENOLE SAITOLOK…...…………….DEFENDANT

RULING

In his Notice of Motion dated and filed on 18th May 2011, the Plaintiff sought three orders -

(1) that Mameyok Saitolok and Kamakei Ole Nchoe be joined as 2ndPlaintiff and 2nd Defendant respectively,

(2) that consequently the plaintiff herein be allowed to amend his plaint,

(3) that costs of the application be provided for.

The application was supported by the Affidavit of Lemundiam Ole Ronko and the grounds on the face thereof.

The Applicant\'s case as argued by Mr. Kurgat his counsel, is that the proposed 2nd plaintiff was co-proprietor of the parcel of land known as CISMARA/LEMEK/142 with the intended 2nd Defendant, and wants to enjoin him in the suit to ascertain how he is it that he applied for and obtained another title to the land when the original title issued on 27th May 1977 was still in possession of the plaintiff. Since the Land Registry records show that the 2nd title was collected by Kamakei Ole Nchoe, the 2nd Defendant, he might be in position to explain how and why he obtained another title without first looking or asking for the previous title. There could therefore a possibility of fraud in the circumstances.

Mr. Musembi learned counsel for the Defendant would hear none of the Applicant\'s contentions. In his Grounds of Opposition dated 1st September 2011 and filed on 7th September 2011, the Defendant contends that the application is brought in bad faith(malafides)and that it is an abuse of the process of court, solely aimed at defeating issues raised by the Defendant in her grounds of opposition dated 24th March 2011, and that the application confirms the issues first raised that the original plaint raises no cause of action against the Defendant. Counsel contended that to allow the application would be a miscarriage of justice as there is no nexus between the proposed 2nd plaintiff and the proposed 2nd defendant. Counsel concluded that the application is therefore bad in law and should be dismissed together with the entire suit with costs to the Defendant.

The procedure relating to joinder of parties is set out in Order 1 rules 1 and 2 of the Civil Procedure Rules 2010. Under rule 1 -

"all person may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where is such persons brought separate suits, any common question of law or fact would arise."

Similarly, rule 3 provides -

"(3)all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or 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."

As already outlined above considering these two rules, the question is whether there is an act or transaction or acts or series of transactions in respect of or arising from which any common question of law or fact arise.

The Respondent has not answered the applicant\'s allegation that he together with the intended 2nd Defendant conspired sometime in December 2010 to have a new Title Deed issued to them while at all material, he, the applicant, together with the late Matasia Ole Saitolok and Kamakei Ole Nchoe, the Intended 2nd Defendant, were in fact the registered proprietors in common in equal shares of the suit land. The Applicant has displayed both the new and old title. In answer to the allegations the Respondent raises technical issues of law which are not an answer to the applicants specific allegation of fact that he, the late Matasia Ole Saitolok and Kamakei Ole Nchoe are registered proprietors of the suit land. Those allegations of fact need an answer by way of a Replying Affidavit and Grounds of Opposition leave the allegations begging for an answer.

In the case of ATIENOVS. ONONO [1985] K.L.R. 677, the court held inter alia that when an amendment has the effect of adding a new party, that new party should not be prejudiced.

In this case, the intended amendment by joinder of parties as plaintiff and defendant will not prejudice any of the new or added plaintiff and added Defendant. On the contrary it will crystallize the issues as between the parties. It will answer questions such as were the Applicant, the intended 2nd plaintiff, the late Matasia Ole Saitolok and Kamakei Nchoe proprietors in common in equal shares of the suit land? What is the interest of, and who is the 1st Defendant in this suit? Was the 1st Defendant to inherit the whole of the suit land as purported under the Certificate of Confirmation of a Grant issued on 1st July 1998 in Nairobi Succession Cause No. 6 of 1996?

In my view these are all acts or series of acts and transactions which call for answers from both the 1st Defendant and the intended 2nd Defendant.For those reasons I allow the Notice of Motion dated and filed on 18th May 2011 in terms of both prayers 1 and 2 thereof. Costs herein will however be in the cause.

I direct that the Amended Plaint be filed and served within the next 14 days, and counsel for both parties take urgent steps to fast track this case.

There shall be orders accordingly.

Dated, signed and delivered at Nakuru this 2nd day of March, 2012

M. J. ANYARA EMUKULE

JUDGE