[2024] KEELC 3815 (KLR)
The court found that the suit against the 2nd defendant had abated due to lack of service of summons for over eight years, as mandated by Order 5 Rule 2(7) of the Civil Procedure Rules. Furthermore, the plaintiff's claim could not be determined in the absence of all persons who had acquired titles to the disputed...
Source-derived case information.
- Citation
- [2024] KEELC 3815 (KLR)
- Parties
- Plaintiff: Nathan Onkundi Mwema; Defendant: Jeremiah Oino Maina; Defendant: Robert Yusuf Simba
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 178 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Striking Out Suit
- Outcome
- Suit struck out for want of service and non-joinder of necessary parties.
- Judges
- M Sila
- Legal Topics
- Service of Summons, Joinder of Parties, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nathan Onkundi Mwema
Plaintiff
Jeremiah Oino Maina
Defendant
Robert Yusuf Simba
Defendant
Procedural Posture
Environment and Land Case / Ruling on Striking Out Suit
Legal Issues
- 1 Whether the suit against the 2nd defendant should be struck out for lack of service of summons as required by law.
- 2 Whether the suit can proceed against the 1st defendant alone when other necessary parties (subsequent title holders) have not been joined.
- 3 Whether the plaintiff is entitled to the reliefs sought in the absence of all affected parties.
Ratio Decidendi
The court found that the suit against the 2nd defendant had abated due to lack of service of summons for over eight years, as mandated by Order 5 Rule 2(7) of the Civil Procedure Rules. Furthermore, the plaintiff's claim could not be determined in the absence of all persons who had acquired titles to the disputed land, as their interests would be directly affected by any orders issued. Despite being granted multiple opportunities to amend the pleadings and join the necessary parties, the plaintiff failed to do so. The court concluded that proceeding with the suit in its current form would be futile and contrary to the principles of fair hearing and due process. Consequently, the entire...
Court Disposition
Suit struck out for want of service and non-joinder of necessary parties.
Orders
- The suit against the 2nd defendant is struck out for want of service of summons.
- The entire suit is struck out for failure to join necessary parties.
Full Case Text
Judgment text and source record
22 paragraphs
Mwema v Maina & another (Environment & Land Case 178 of 2016) [2024] KEELC 3815 (KLR) (14 May 2024) (Ruling)
Neutral citation: [2024] KEELC 3815 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 178 of 2016
M Sila, J
May 14, 2024
Between
Nathan Onkundi Mwema
Plaintiff
and
Jeremiah Oino Maina
1st Defendant
Robert Yusuf Simba
2nd Defendant
Ruling
1. Through a plaint filed on 28 June 2016, the plaintiff commenced suit against the two defendants, whereat he pleaded that in 1979 he and the 1st defendant jointly purchased the land parcel Daraja Mbili Plot No. 145 measuring 0. 26 Ha, located at Kisii. He claims that they each paid Kshs. 20,000/= to buy the land and that it was agreed that title would be registered in the name of the 1st defendant and he would later transfer to the plaintiff his half share. It is pleaded that in 1982, the plaintiff developed a permanent house on his share of the land. He contended that the 1st defendant proceeded to illegally subdivide the land giving rise to two titles being Central Kitutu/Daraja Mbili/2687 and 2688 registered in name of the 1st defendant and one Gilbert Momanyi Maturwe respectively. The plaintiff further avers that the 1st defendant subdivided the land parcel No. 2687 to give rise to the parcels No. 4635 for himself and No. 4636 in name of his children Stephen Nyakundi Onchanga and Gladys Moraa. He then transferred a portion measuring 0. 04 Ha, titled as Central Kitutu/Daraja Mbili/2988 to the plaintiff. It is contended that the 1st defendant allocated to the 2nd defendant another portion lying squarely on the plaintiff’s land. In the suit he asked for a declaration that he owns half of the land and asked that any subsequent titles not according to the half share be cancelled.
2. When the matter came up for hearing on 19 October 2023, I pointed out to Mr. Begi, learned counsel for the plaintiff, that there was no proof of service of summons upon the 2nd defendant. I also pointed out to counsel that the suit as pleaded is bound to affect all purchasers of the original parcel of land, and their titles, but they were not parties. Mr. Begi sought time to seek instructions and I directed the matter to be mentioned on 6 December 2023. On that day, Mr. Begi stated that he had written to the Land Registrar, seeking particulars of the subdivisions and he was waiting for the same. He asked for 30 more days, which I gave, and I directed the case to be mentioned on 28 February 2024. On that day, Mr. Begi stated that he had prepared an application to amend but his client was indisposed and asked for 30 more days to file his application which time I gave. I directed the matter to be mentioned on 13 May 2024. Mr. Begi made no appearance on the day and I directed that I would make orders today.
3. As far as I can see the case of the plaintiff is a non-starter against the 2nd defendant. There is no proof of service of summons against him and the suit against him has thus abated for failure to serve summons as provided for under Order 5 Rule 2 (7) which gives court power to dismiss suit on expiry of 24 months from the date of issue of the original summons. The original summons herein were issued in the year 2016 which is 8 years ago. On the basis of Order 5 Rule 2 (7) the suit against the 2nd defendant is struck out.
4. There is also nothing to proceed for trial as against the 1st defendant only. The case of the plaintiff is that several titles have been issued for the half share that he is entitled to which are in the names of different people. The case cannot proceed without those people having the titles being made parties. Time was given for the plaintiff to amend but he has failed to do so. There would be no substance to proceed for trial without these persons being parties. It is therefore pointless to set down the matter for hearing. For this reason I proceed to strike out the entire case. Costs will be to the 1st defendant.
5. It is so ordered.
DATED AND DELIVERED THIS 14 DAY OF MAY 2024JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURT AT KISIIDelivered in presence of :Mr. Ochoki for the 1st defendantN/A on part of M/s Aboki Begi & Company for the plaintiffN/A on part of 2nd defendantCourt Assistant – David Ochieng’