[2016] KEELC 153 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO.94 OF 2012

RAPHAEL WAMBURA........................................................PLAINTIFF

VERSUS

FRANCIS OKECH OGENDO ...........................................DEFENDANT

AND

NICHODEMUS ATITIO ARODI………………………....APPLICANT

RULING

1. The application dated 13th April 2016 is brought by Nichodemus Atito Arodi, the applicant, seeking to be enjoined as a defendant or Interested Party in the suit where Raphael Wambura is the Plaintiff and Francis Okech Ogendo, the Defendant, on the basis that he is the registered proprietor of the suit land. The application is supported by the Applicant’s affidavit sworn on 13th April 2016 to which is annexed a copy of the land sale agreement between the Defendant and the Applicant dated 17th April 2014, and a copy of title deed issued on 25th September 2014 in the names of Applicant among others.

2. The application is opposed by the Plaintiff through his affidavit sworn on 27th May 2016 deponing among others that the transactions between the Defendant and the Applicant was in total disregard of the caution he had filed over the suit land on 8th June 2011, which was fraudulently removed without his knowledge. That as his agreement with the Defendant was earlier than that between the Defendant and the applicant, then he has a better claim over the suit land than the applicant.

3. The Applicant’s counsel filed their written submissions dated 12th July 2016 while the Plaintiff’s counsel filed theirs dated 7th September 2016.

4. The issue for consideration is whether the Applicant has established that his being enjoined into this suit is necessary for the court to determine all the questions involved in the suit.

5. The court has considered the grounds on the notice of motion, affidavit evidence and written submissions by both sides and come to the following findings;

a) That both the Plaintiff and Applicant entered into land sale agreement at different times with the Defendant. That the sale agreement between the Plaintiff and Defendant of 30th July 2009 was over a parcel of land measuring 0. 15 hectares from Kisumu/Nyalenda/478, whose total acreage was 0. 23 hectares as per the attached copy of the register. That the sale agreement between the Applicant and Defendant dated 17th April 2014 is over land parcel Kisumu/Nyalenda ‘B’/2234, measuring 0. 15 hectares, registered in the names of the Applicant on the 25th September 2014.

b) That the pleadings filed by the Plaintiff and Defendant confirms that parcel Kisumu/Nyalenda B/2234 is one of the two parcels subdivided from parcel Kisumu/Nyalenda B/478.

c) That the foregoing findings shows that the parcel of land Kisumu Nyalenda B/2234which the Plaintiff sued the Defendant for under the plaint dated 7th November 2012, is no longer in the names of the Defendant as the same was transferred to the Applicant’s name on the 25th September 2014. That it is therefore important that the Applicant be enjoined in these proceedings as a second Defendant to enable the issues of ownership and title to the said land be determined in this suit. That failure to do so would mean that should the plaintiff be successful, he would be forced to initiate fresh proceedings against the Applicant which would be more expensive both in time and resource on the parties and the court.

6. That in view of the foregoing the notice of motion dated 13th April 2016 has merit and is allowed as prayed with costs in the cause. That the Applicant is hereby enjoined as the 2nd Defendant and accordingly the Plaintiff do file and serve an amended plaint incorporating the Applicant as the 2nd Defendant within the next 21 days.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 30THDAY OF NOVEMBER 2016

In presence of;

Plaintiff Absent

Defendant Absent

Applicant Present

Counsel Mr Arkhio for Mwamu for Plaintiff

Mr Okello for Awino for Applicant

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

30/11/2016

30/11/2016

S.M. Kibunja Judge

Oyugi court assistant

Applicant present

Mr Arikhio for Mwamu for Plaintiff

Mr Okello for Awino for Applicant.

Court: ruling dated and delivered in open court in presence of Applicant and Mr. Arikhio for Mwamu for Plaintiff and Mr. Okello for Awino for Applicant.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

30/11/2016