[2016] KEELC 1301 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC CASE NO. 667 OF 2014

MOSES KINAICHU MUGENYO

JOSEPH KIHARA GITUI

WANJENI KAGERI (Suing on behalf of

Giakabuiri Kanjikeru S.H.G ….................................…. PLAINTIFFS/RESPONDENTS

-VERSUS-

MARGARET WANDIA NGUNU...................................…. 1ST DEFENDANT/APPLICANT

THE DISTRICT LAND REGISTRAR, NYERI...........… 2ND DEFENDANT/RESPONDENT

RULING

1. Vide the plaint dated 18th January, 2012 the plaintiffs pray that the 1st defendant be compelled to re-open a public access road found between the parcels of land known as No. Magutu/Gatei 444 and 445 and in default, the 2nd defendant be ordered to re-open the said road.

2. Upon being served with suit papers, the 1st defendant/respondent filed the statement of defence dated 19th March, 2012 in which she admits being the registered proprietor of the parcels of land herein but denies that there exists any access road between the two parcels of land.

3. On 10th November, 2015 the 1st defendant filed the notice of motion dated 10th November, 2015 praying that this suit be struck out with costs to her.

4. The application is premised on the grounds that the suit was filed jointly by the plaintiffs when the 2nd plaintiff had no capacity to sue or be sued (was adjudged bankrupt). Owing to that misjoinder of the parties, the applicant contends that the suit is an abuse of the court process.

5. The application is supported by the affidavit (supporting affidavit) of the 1st defendant/applicant sworn on 10th November, 2015. In that affidavit, the 1st defendant/applicant has reiterated the grounds on the face of the application and annexed a copy of the receiving order issued on 8th July, 2004 marked MWN-1 and a copy of the order lifting the receiving order, marked MWN-2.

6. In reply to the issues raised in the 1st defendant/applicant’s application, the 2nd plaintiff/respondent, Joseph Kihara Gitui, filed the affidavit (replying affidavit) he swore on 15th December, 2015. In that affidavit, the 2nd plaintiff/respondent admits that by the time the suit was instituted, there existed a receiving order against him but contends that the application has been brought in bad faith (to defeat the cause of justice).

7. Arguing that his co-plaintiffs had no receiving orders, the 2nd plaintiff/applicant urges the court not to strike out the suit.

8. When the application came up for hearing, counsel for the 1st defendant/applicant, Mr. Karigithu, reiterated the 1st defendant/respondent’s contention that the current suit was filed when there existed a receiving order against the 2nd plaintiff/respondent hence bad in law.

9. Counsel for the plaintiffs/respondents, Mr. Mugo,submitted that the 2nd plaintiff/respondent is not the plaintiff but Giakaburi Self Help Group. Terming the 2nd plaintiff/respondent a mere official of the Self Help Group, Mr. Mugo submitted that the other officials of the Self Help Group had capacity to sue.

10. Maintaining that the suit is properly before court, Mr. Mugo submitted that it would be unjust to strike out the suit.

11. In a rejoinder, Mr. Karigithu pointed out that the plaintiffs have described themselves as such (Plaintiffs have not stated that they are suing on behalf of the Self Help Group).

Analysis and determination

12. Whilst it is not in dispute that the 2nd plaintiff/respondent had no capacity to sue or to be sued when the instant suit was filed, there being more than one plaintiff in this matter, the issue that arises is whether joining the 2nd plaintiff/respondent to the suit rendered the suit fatally defective?

13. The answer to the foregoing question is found in Order 1 Rule 9 of the Civil Procedure Rules which provides as follows:-

“ No suit shall be defeated by reason of the misjoinder or non- joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

Rule 10 (2) on the other hand provides:-

“The court may at 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 that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that 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.”

14. It is clear from the foregoing provisions of the law that misjoinder of parties is not a ground for striking out pleadings. There being no other reason or ground advanced in support of the application, I decline to grant the orders sought. Instead, I direct that the 2nd defendant’s/respondent’s name be strike out from the suit.

Orders accordingly.

Dated, signed and delivered at Nyeri this 18th day of February, 2016.

L N WAITHAKA

JUDGE

In the presence of:

Ms Wambui for the defendant

N/A for the plaintiffs

Court assistant - Lydia