[2023] KEELC 15914 (KLR)

Ndung’u v Mwangi & 7 others; Gitau & 8 others (Applicant) (Environment & Land Case 1391 of 2014) [2023] KEELC 15914 (KLR) (2 March 2023) (Ruling)

Neutral citation: [2023] KEELC 15914 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 1391 of 2014

JE Omange, J

March 2, 2023

Between

Francis Maina Ndung’u

Plaintiff

and

Peter Mwangi

1st Defendant

Joseph Mugo

2nd Defendant

Peter Njoroge Nderitu

3rd Defendant

John Kamande Njoroge

4th Defendant

Peter Wanjohi Mwangi

5th Defendant

Wanjiku Wanjenga Karanja

6th Defendant

Francis Njenga Mukua

7th Defendant

Isaiah Peter Kanyi

8th Defendant

and

Joseph Gitau

Applicant

James Mugenda

Applicant

David Mbugua Njenga

Applicant

Elija Mbugua Mugenda

Applicant

Nicholas Mwangi Murugu

Applicant

James Kamau Gachau

Applicant

John Gichuki Thairu

Applicant

Joseph Kabugi Kamau

Applicant

Mary Wambui Thaka

Applicant

Ruling

1. The application dated December 1, 2022 by the interested parties were brought under section 1A, 1B of the Civil Procedure Act, under oder 1 rule 10, order 22 rule 22, order 51 rule 1 of the Civil Procedure Rules seeking the following reliefs;1. That the plaintiff has filed application dated September 30, 2022 seeking to execute the judgment of the court dated January 24, 2021 which application seeks eviction of the defendants from and parcel Ruiru Kiu Block 2/4547 which application is scheduled for ruling on January 19, 2023. 2.That this honourable court be pleased to set aside judgment/decree delivered on 24th day of January 2021 and order a retrial of this matter.3. That this honourable court be pleased to stay execution of the judgment delivered on January 24, 2021 and all consequential orders arising therefrom.4. That this honourable court be pleased to enjoin Joseph Gitau, James Mugenda, David Mbugua, Elijah Mbugua Mugenda, Nicholas Mwangi Murugu, James Kamau Gachau, John Gichuki Thairu, Joseph Kabugi Kamau and Mary Wambui Thaka as defendants in this suit.5. That this honourable court upon setting aside the judgment and enjoining the applicants herein as defendants be pleased to order the transfer of this matter to ELC Thika to be heard together with Thika ELC No 112 of 2019 (formerly Nairobi ELC No 1193 of 2014).6. That this honourable court be pleased to arrest its ruling on the application dated September 30, 2022 for eviction scheduled for ruling on January 19, 2023. 7.That the costs of this application be provided for.

2. The application is premised on the grounds that the applicant has constructed and have documents proving that they reside on land parcel Ruiru Kiu Block 2/4547. The applicants aver that they were sued by the plaintiffs herein in Nairobi ELC 1193 of 2014 which was later transferred to Thika ELC 12 of 2019. At the time they were said to be residing in Ruiru Block 2/ 4547.

3. The applicants contend that the plaintiff herein has filed an application for eviction in regard to the block 2/ 4547 hereinafter referred to as the suit property. The applicants argue that the plaintiff will use the eviction order in Block 2/4547 against the defendants who actually reside in Block 2/4546 which was the subject matter of the Thika ELC Case No 112 of 2019 before an amendment was made to the plaint to reflect the suit property herein.

4. In the application in support of the application the applicants allege that they are in possession of the suit property and not the plaintiff in favour of whom this court issued a judgement.

5. The plaintiff on his part avers that judgement was entered in his favour after a full court hearing. That after the judgment the defendants filed a similar application for stay of execution which was dismissed. The court declined to review or set aside the judgement of the court which was entered after a full hearing.

6. The plaintiff insists that the judgement is against the defendants and not the applicants hence there can be no prejudice suffered by the applicants who in any case have an ongoing matter in which they can have their rights determined.

7. Counsel for the applicant filed written submissions in which he submitted that the suit property herein which was subject of the judgement delivered by this court is in respect to a property inhabited by the applicant and not the defendants. He told the court that the ix up in parties was discovered in Thika ELC 112 of 2019 whereupon the parties amended their pleadings to reflect the correct property which is the suit property herein. Counsel curiously argues that if the Thika matter without this judgement being set aside the matter would be res judicata. Lastly he argues that the applicants who are likely to be affected by the judgement will not have a chance to be heard if the judgement is not set aside.

8. Having considered the pleadings and the submissions by both counsel I find that the following issues arise for the courts determination:- Are there good grounds to set aside the judgment?

Should the applicants be enjoined to the suit?

9. On the first issue, it is the applicants case that the judgement ought to be set aside primarily for two reasons one that there was a mix up in the parties and the properties they residing on and secondly that the applicants who are residing on the suit property were not given a chance to be heard. I have looked at the judgement that as delivered by Hon Justice Komingoi and I note that the issue of the of the actual occupant of the suit property was raised. In paragraph 30 the court in summing up the evidence notes thatDW3 testified that the defendants reside on Block 4546 and not the suit property. The court discounted this evidence as being contradictory to the evidence of DW1 and DW2 who testified on behalf of the defendants. I find that the issue of the mix up was brought up before the court which duly considered it and discounted. This finding was by a court of equal jurisdiction. As such I cannot purporting to re-evaluate the evidence again which would amount to sitting on appeal over a decision of a court of equal jurisdiction which I cannot do.

10. On the right to be heard, it is indeed trite law that parties to have a dispute have a right to be heard. Can the applicants then be enjoined to this suit? Order 1 rule 10 on which they have sought to be joined as parties provides;"Substitution and addition of parties [Order 1, rule 10. ](2)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."

11. The court has wide latitude to enjoin a plaintiff or a defendant at any stage of the proceedings. In this case the applicants have indicated that they are embroiled in a dispute with the same plaintiff herein in another matter over the same property. They will get their day in court Thika ELC 12 of 2019. There is no need of enjoining to a matter wherein judgement has already been delivered against a different party. The court that is hearing their matter is able to give any necessary orders to safeguard their rights.

12. The upshot of the foregoing is that the applicants’ application fails and is dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 2ND DAY OF MARCH 2023. JUDY OMANGEJUDGEIn the presence of:Mr. Oyungi holding brief for Mr. Njonjo for the PlaintiffMs Muchemi holding brief for Mr. Kanyi for 1st Defendant.Steve - Court Assistant