[2018] KEELC 3686 (KLR)
The court found that the preliminary objection lacked merit on both grounds. First, the plaint did not name Patrick Lihanda Musungu as a plaintiff, rendering the objection on capacity baseless. Second, the issue of non-joinder of Kitale Pentecostal Church, the registered owner of the suit land, did not warrant...
Source-derived case information.
- Citation
- [2018] KEELC 3686 (KLR)
- Parties
- Plaintiff: Pentecostal Assemblies of God Kenya through its Registered Trustees; Plaintiff: Bernard Ayeka; Plaintiff: Allan Lidambitsa; Plaintiff: John Juma; Defendant: Josephat Ogole Elegwa; Defendant: Michael Wamalwa Nalwelisie; Defendant: Ruth Sikolia Makonjo; Defendant: Margaret Masitsa Muhalia; Defendant: Humphrey Mwole Egosangwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 134 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- FM Njoroge
- Legal Topics
- Joinder of Parties, Capacity to Sue, Misjoinder and Nonjoinder, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pentecostal Assemblies of God Kenya through its Registered Trustees
Plaintiff
Bernard Ayeka
Plaintiff
Allan Lidambitsa
Plaintiff
John Juma
Plaintiff
Josephat Ogole Elegwa
Defendant
Michael Wamalwa Nalwelisie
Defendant
Ruth Sikolia Makonjo
Defendant
Margaret Masitsa Muhalia
Defendant
Humphrey Mwole Egosangwa
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether Patrick Lihanda Musungu has capacity to sue on behalf of the 1st plaintiff.
- 2 Whether the suit should be struck out for non-joinder of Kitale Pentecostal Church, the registered owner of the suit land.
Ratio Decidendi
The court found that the preliminary objection lacked merit on both grounds. First, the plaint did not name Patrick Lihanda Musungu as a plaintiff, rendering the objection on capacity baseless. Second, the issue of non-joinder of Kitale Pentecostal Church, the registered owner of the suit land, did not warrant striking out the suit because Order 1 Rule 9 of the Civil Procedure Rules expressly provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. The court emphasized that it can deal with the matter in controversy as regards the rights and interests of the parties actually before it. Consequently, the preliminary objection was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection dated 15/11/2017 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 134 OF 2017
PENTECOSTAL ASSEMBLIES OF GOD KENYA
through its Registered Trustees)...............................................1ST PLAINTIFF
BERNARD AYEKA.................................................................2ND PLAINTIFF
ALLAN LIDAMBITSA............................................................3RD PLAINTIFF
JOHN JUMA.............................................................................4TH PLAINTIFF
VERSUS
JOSEPHAT OGOLE ELEGWA............................................1ST DEFENDANT
MICHAEL WAMALWA NALWELISIE..............................2ND DEFENDANT
RUTH SIKOLIA MAKONJO...............................................3RD DEFENDANT
MARGARET MASITSA MUHALIA...................................4TH DEFENDANT
HUMPHREY MWOLE EGOSANGWA..............................5TH DEFENDANT
R U L I N G
1. The defendants filed a Preliminary Objection dated 15/11/2017 which raises two grounds as follows:-
1. That one Patrick Lihanda Musungu does not have capacity to sue on behalf of the 1st plaintiff.
2. That Kitale Pentecostal Church, the registered owner of the suit land is not a party to this suit.
2. By reason of those grounds the defendants prays that the plaintiffs’ suit be struck out.
3. While addressing this preliminary objection I have examined the plaint and found that the title does not mention the said Patrick Lihanda Musungu as a plaintiff.
4. The defendant has proceeded to make assumptions where none should be made. To that extent, the first limb of the objection does not have merit.
5. In respect of the second limb, I find that it is a case of joinder of parties. Order 1 Rule 9of theCivil Procedure Rules states as follows:-
“9. Misjoinder and non-joinder
No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
6. I therefore find that the second limb of the objection is also devoid of merit.
7. I hereby dismiss the preliminary objection dated 15/11/2017 with no orders as to costs.
Dated, signed and delivered at Kitale on this 22nd day of March, 2018.
MWANGI NJOROGE
JUDGE
22/3/2018
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Bisonga for the Plaintiffs
Mr. Teti holding brief for Kaosa for defendants
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
22/3/2018