[2007] KEHC 921 (KLR)
The court found that any claim by the Matanos regarding breach of contract arising from the sale of the suit land in 1990 is time barred under the Limitation of Actions Act. Exercising its discretion under the Civil Procedure Rules, the court determined that enjoining the Matanos as defendants would not assist in...
Source-derived case information.
- Citation
- [2007] KEHC 921 (KLR)
- Parties
- Plaintiff: Nyonaka Limited; Defendant: Alice Wairimu Mwangi; Defendant: Rosemary Kagure Maina
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 108 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Enjoin Third Parties as Defendants
- Outcome
- application dismissed with costs
- Legal Topics
- Joinder of Parties, Limitation of Actions, Ownership Disputes, Mandatory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Nyonaka Limited
Plaintiff
Alice Wairimu Mwangi
Defendant
Rosemary Kagure Maina
Defendant
Procedural Posture
Civil Case / Ruling on Application to Enjoin Third Parties as Defendants
Legal Issues
- 1 Whether the Matanos should be enjoined as defendants in the suit.
- 2 Whether any claim by the Matanos regarding breach of contract is time barred under the Limitation of Actions Act.
- 3 Whether joining the Matanos would assist in the effective determination of the issues in controversy.
Ratio Decidendi
The court found that any claim by the Matanos regarding breach of contract arising from the sale of the suit land in 1990 is time barred under the Limitation of Actions Act. Exercising its discretion under the Civil Procedure Rules, the court determined that enjoining the Matanos as defendants would not assist in the effective determination of the issues but would instead introduce a time-barred claim and unnecessarily complicate the proceedings. Therefore, the application to enjoin the Matanos as defendants was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to enjoin the Matanos as defendants is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 108 of 2007
NYONAKA LIMITED ::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
ALICE WAIRIMU MWANGI
ROSEMARY KAGURE MAINA :::::::::::::::::: DEFENDANTS
**********************
RULING
The Plaintiff is the registered proprietor of ALL THAT piece of land situate at Changamwe Miritini and known as subdivision No. 217, Section V Mombasa comprising 4. 6 acres or thereabouts (the suit piece of land). It has been so registered since 8th August 1996 after buying the same from Stanely Robert Matano and Ruth Matano (the Matanos). On a visit to the piece of land on or about the 1st May 2007 a representative of the Plaintiff found the Defendants and others constructing buildings on it. The Plaintiff immediately thereafter filed this suit and sought in the main a mandatory injunction to have the Defendants evicted from the land and their structures demolished.
Along with the filing of this suit the Plaintiffs applied for injunctions on similar terms.
Upon being served with the application and the summons to enter appearance the first and second Defendants filed a defence and the second Defendant swore a replying affidavit in both of which they alleged that they know the suit piece of land as belonging to the Matanos and that they are lessees for value of the Matanos. They further claim that upon information given by the Matanos the Plaintiff’s acquisition of the land from the Matanos was fraudulent in that the Plaintiff did not pay the full purchase price to the Matanos and that the latter’s signatures on the transfer are forgeries and that they will apply to have the Matanos enjoined as Defendants in this suit. They have made good of that threat and have applied to have the Matanos injoined as Defendants in this case. This ruling is on that application.
Annexed to the affidavit of the second Defendant in support of the application are lease agreements dated 12th October 2005, 17th January 2006 and 17th March 2006 that she entered into with Ruth Matano for the lease of portions of the suit piece of land. In view of these documents Mr. Molenje, counsel for the Defendants urged me to allow this application and have the Matanos enjoined to these proceedings as Defendants so that the issue of ownership of the suit piece of land can be resolved once and for all.
The Plaintiff strongly opposes this application. Relying on the replying affidavit of Rahab Nyokabi Waitete Mr. Ochwa, counsel for the Plaintiff, argued that joining the Matanos to this suit will not add value to this case but will instead cloud the issues in controversy. If there was any breach of contract, he further argued, the Matanos could not have waited for over 10 years to sue.
The court has a wide discretion under Order I Rules 3, 13 and 22 of the Civil Procedure Rules under which this application is made either on its own motion or on application by any party to enjoin any other party into a suit for the effective determination of the issues in controversy. But that discretion has to be exercised in accordance with the law.
In this case the sale by the Matanos of the suit piece of land to the Plaintiff was in 1990. Any claim by the Matanos of breach of contract is therefore time barred under the Limitation of Actions Act. I agree with counsel for the Plaintiff that to enjoin the Matanos in this suit will not only cloud the issues but will also give license to the Matanos to urge an otherwise time barred claim. Consequently I dismiss the application with costs.
DATED and delivered this 18th day of December 2007.
D.K. MARAGA
JUDGE