[2024] KEELC 13250 (KLR)

Muthusi v Olive Limited & another (Environment & Land Case E092 of 2022) [2024] KEELC 13250 (KLR) (14 November 2024) (Ruling)

Neutral citation: [2024] KEELC 13250 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment & Land Case E092 of 2022

LC Komingoi, J

November 14, 2024

Between

Margaret Nduku Muthusi

Plaintiff

and

Olive Limited

1st Defendant

The Land Registrar Ngong

2nd Defendant

Ruling

1. This is the Notice of Motion dated 29th May 2023 brought under;(Section 1A, 1B and 3A of the Civil Procedure Act; Order 1 Rule 10 (2); Order 2, Rule 15; Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law).

2. It seeks orders;1. The name of the 1st Defendant be struck out from the suit on the ground that it is improperly enjoined as a party in this suit.2. The suit against the 1st Defendant be struck out as it does not contain a sufficient cause of action against it.3. Costs of this application be provided for.

3. The grounds are on the face of the Notice of Motion and are set out in paragraphs a – h.

4. The Application is supported by the affidavit of Peter Gitau Kariuki, a director of the 1st Defendant sworn on the 29th May 2023.

5. The Application is opposed. There is a Replying Affidavit sworn by Margaret Nduku Muthusi, the Plaintiff/Respondent sworn on the 5th June 2023.

6. The 2nd Defendant intimated to the court that he did not wish to participate in the Notice of Motion.

7. On the 17th October 2023, the court with the consent of parties directed that the Notice of Motion be canvassed by way of written submissions.

8. The 1st Defendant/Applicant’s submissions are dated 4th March 2024. They raise one issue for determination; whether the Plaintiff’s Application meets the threshold set for striking out a party from the pleadings. Reliance placed on Order 1 rule 10 (2) of the Civil Procedure Rules and the case of Opele Vs. Biometric Technology & 3 Others KEELRC 3718 (KLR).

9. It is further submitted that the Plaintiff/Respondent has failed to prove that the 1st Defendant/Applicant has interfered with her peaceful possession of the property or threatened to interfere with proprietary rights of the suit parcels.

10. It is also submitted that the attached photographs depicting a project by the 1st Defendant/Applicant named “Naserian Ridge Phase 3,” are for the 1st Defendant’s parcel of land Kajiado/Ntashart/1237, which it purchased from George Ngure Kariuki.

11. It is also submitted that the question of whether the parties joined in a suit are proper, is one that goes to the root of the case. He has put forward the cases of Apex International Limited & Another Vs. Kenya Anti-Corruption Commission (2012) eKLR. Amon Vs. Raphael Tuck & Sons Ltd (1956) 1 AII ER 273.

12. It is also submitted that the court may exercise its discretion and order the striking out of the 1st Defendant/Applicant from the pleadings as there is no reasonable cause of action raised against it and has been improperly joined in the suit.

He prays that the Application be allowed. 13. The Plaintiff/Respondent submissions are dated 4th September 2024. It is submitted that the 1st Defendant/Applicant has advertised the Plaintiffs parcel of land naming the project as “Naserian Ridge Phase 3. ”

14. Counsel further submitted that the 1st Defendant/Applicant has not attached any sale agreement to show that it purchased it parcel of land from George Ngure Kariuki. That this application is an attempt by the 1st Defendant/Applicant to hoodwink the court and divert the attention of this court from the real issues arising herein.

15. It is further submitted that the Plaintiff’s claim against the 1st Defendant raises crucial issues including whether the 1st Defendant had an interest in taking over the Plaintiff’s land.She prays that the Notice of Motion be dismissed with costs to the Plaintiff/Respondent.

16. I have considered the Notice of Motion, the affidavit in support, the response thereto, the rival submissions and the authorities cited. The issue for determination is whether the Application is merited.

17. In paragraph 7 of the plaint, the plaintiff states;“On 31st October 2022, the 1st Defendant and its servants trespassed and started clearing the bushes on the land in readiness of illegal subdivision of the property belonging to the plaintiff so that they can sell the plots to unsuspecting members of the public.”

18. The Plaintiff has also annexed photographs to the Supplementary Affidavit sworn on 2nd November 2022 which shows a Bill board written “Naserian Ridge Phase 3” as advertised by Olive. These averments have not been controverted by the 1st Defendant/Applicant.

19. It is clear that the Plaintiff has a claim against the 1st Defendant/Applicant which he cannot be wished away. The court will have to determine whether the Plaintiff has a case against the 1st Defendant after analysing the evidence tendered.

20. In conclusion I find no merit in this application and the same is dismissed. The costs will abide the outcome of the main suit.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 14TH DAY OF NOVEMBER 2024L.KOMINGOIJUDGE.In The Presence Of:Mr. S.M. Thuku for the Plaintiff.M/s Njoki Macharia for the 1st Defendant.Ms. Kirina for the 2nd Defendant.Mutisya – Court Assistant.