[2014] KEELC 57 (KLR)
The court held that once a suit is withdrawn by consent and the withdrawal is endorsed as an order of the court, the suit ceases to exist and there is no pending matter before the court. Consequently, there is no legal basis for enjoining an interested party to a non-existent suit. The applicant, if she wishes to...
Source-derived case information.
- Citation
- [2014] KEELC 57 (KLR)
- Parties
- Plaintiff: Patrick Nyamu Kiura; Defendant: Sarah Wambura Githinji; Defendant: Ann Wanjiru Githinji; Defendant: Dorcas Wangechi Githinji; Interested Party: Eunice Wawira Githinji
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 830 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder After Suit Withdrawal
- Outcome
- application dismissed with costs
- Legal Topics
- Joinder of Parties, Withdrawal of Suit, Interested Party Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Nyamu Kiura
Plaintiff
Sarah Wambura Githinji
Defendant
Ann Wanjiru Githinji
Defendant
Dorcas Wangechi Githinji
Defendant
Eunice Wawira Githinji
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder After Suit Withdrawal
Legal Issues
- 1 Whether an interested party can be enjoined in a suit that has already been withdrawn by consent of the parties.
- 2 Whether there is any pending suit in which the applicant can be joined as an interested party.
Ratio Decidendi
The court held that once a suit is withdrawn by consent and the withdrawal is endorsed as an order of the court, the suit ceases to exist and there is no pending matter before the court. Consequently, there is no legal basis for enjoining an interested party to a non-existent suit. The applicant, if she wishes to pursue any claim relating to the property, must file a fresh suit and demonstrate a proper cause of action. The application for joinder was therefore dismissed as the court lacked jurisdiction to entertain it in a suit that had already been terminated by the parties themselves.
Court Disposition
application dismissed with costs
Orders
- The application by the interested party dated and filed on 30th June, 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 830 OF 2013
PATRICK NYAMU KIURA …………………………………….…..……… PLAINTIFF/RESPONDENT
VERSUS
SARAH WAMBURA GITHINJI …………………………………. 1ST DEFENDANT/RESPONDENT
ANN WANJIRU GITHINJI ……………………………….……… 2ND DEFENDANT/RESPONDENT
DORCAS WANGECHI GITHINJI …………………….……….. 3RD DEFENDANT/RESPONDENT
EUNICE WAWIRA GITHINJI ……………………………………………………..INTERESTED PARTY
RULING
On 18th December, 2013, PATRICK NYAMU KIURA filed this suit against the three defendants namely:
SARAH WAMBURA GITHINJI
ANN WANJIRU GITHINJI
DORCAS WANGECHI GITHINJI
He was seeking some orders with regard to a parcel of land known as KABARE/MIKARARA/566. The defendants filed a defence to the claim but on 12th May, 2014, all the parties herein signed a consent letter marking the case as withdrawn with no orders as to costs. That order was endorsed by the Deputy Registrar on 15th May, 2014 and made an order of the Court.
On 30th June, 2014 EUNICE WAWIRA GITHINJI filed an application seeking to be enjoined as an interested party in this case. In her affidavit in support of that application, she depones that it is imperative that she “be enjoined in this suit so that all matters touching the said land parcels be adjudged fully”
The application is opposed and in her replying affidavit, the 1st defendant/respondent depones, inter alia, that there is no suit pending in this case as the same was withdrawn by consent of the parties.
The application was orally canvassed before me on 13th November, 2014 with Ms Wanjiru appearing for the respondents. The applicant was acting in person.
I have considered the application and the oral submissions of the applicant and Ms Wanjiru for the respondents.
As stated above, this suit was filed on 18th December, 2013 but on 12th May, 2014, all the parties herein filed a consent letter dated 9th May, 2014 expressing their desire to withdraw the suit with no orders as to costs. The letter was on 15th May, 2014 made an order of the Court and the suit was marked as withdrawn with no orders as to costs. This suit therefore ceased to exist on 15th May, 2014 and therefore there is no suit pending in this Court in which the applicant can be enjoined as an interested party. If there is any litigation that she would wish to pursue relating the property No. KABARE/MIKARARA/566, she is within her right to file a suit against any party subject of course to her having a proper cause of action over the same. However, as far as this suit is concerned, it was terminated on 15th May, 2014 by the parties themselves. Indeed, no orders were made against any party with regard to the said parcel of land.
In the circumstances therefore, the application by the interested party dated and filed herein on 30th June, 2014 is dismissed with costs.
B.N. OLAO
JUDGE
1ST DECEMBER, 2014
1/12/2014
Before
B.N. Olao – Judge
Willy – CC
Plaintiff – absent
Defendant – absent
Applicant – present
COURT: Ruling delivered in open Court this 1st day of December, 2014
B.N. OLAO
JUDGE
1ST DECEMBER, 2014