[2009] KEHC 2427 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

Civil Case 28 of 2007

REBECCAH MASESE ONCHWERI ……………… APPELLANT/APPLICANT

VERSUS

CHRISTINE CHERUTO KASONGO ……..….. RESPONDENT/RESPONDENT

AND

MAKARIO OBAJA BASWETI …………………………. INTERESTED PARTY

MOTURI RATEMO RONALD …………………………. INTERESTED PARTY

RULING

Up to 2004 the Plaintiff Rebeccah Masese Onchweri was the registered owner of parcel of land Matutu Settlement Scheme/539. The land was subdivided into two parcels, 690 and 689. 690 was registered in the name of the Defendant Christine Cheruto Kasongo and 689 left with the Plaintiff. The Defendant is the daughter-in-law of the Plaintiff. The Plaintiff claims that she was not a party to the subdivision and transfer above. She claims the Defendant fraudulently, and without her knowledge or consent, caused these transactions and in the process dispossessed her of part of her land. The suit was brought for, among other prayers, a declaration that the subdivision and transfer were fraudulent and illegal; that the records at the lands registry be corrected and rectified; and that, the Defendant be ordered to give up ownership and possession of 690 to Plaintiff.

The Defendant’s position is simply that it was the Plaintiff who caused the subdivision of parcel 539 into 690 and 689, and subsequently transferred 690 to her. She denied perpetrating any fraud in the whole transaction.

The Plaintiff has applied under O.1 rule 10(2), 13 and 22of the Civil Procedure Rules and sections 3A and 63(e) of the Civil Procedure Act to be allowed to join Makario Obaja Basweti and Moturi Ratemo Ronald as Interested Parties to the suit. This is on the grounds that the two have bought into parcel 690, have constructed a hut on the same, evicted the Plaintiff and are tilling the land.

Mr. Wachakana represented the Interested Parties and opposed the application. He relied on the Grounds of Opposition. It is alleged the application is res judicata in that the matters therein are directly and substantially the same as those in application dated 7/3/07 which was decided on 22/11/07. However, that application was for interlocutory injunction. It was brought by the Plaintiffs against the Defendant. It was dismissed with costs. The present application is for joinder of parties. The two are completely different. It does not matter the observations the court may have made. These were provisional observations as the parties have not testified and called witnesses. The evidence of the parties has not been tested by cross examination.

It was argued that the Defendant and the Interested Parties are no-longer the owners of the land and therefore the application has been overtaken by events; that the Plaintiff would have no claim, in law or equity, against them. That would be admission that while the suit is pending, the Defendant has sold or is selling the land in dispute. The Plaintiff may not pursue her land against the new owners except through the Defendant. In law, no order can issue against a party unless he has been heard. No order can issue against the Interested Parties in regard to the land in dispute unless they have been heard. Whatever interest they may have acquired in relation to the land in dispute, which land the Plaintiff claims, cannot be defended unless they are parties to this claim. It is my finding that for the court to effectively and completely adjudicate upon and settle all questions involved in the suit the Interested Parties have to be joined. There is no demonstrated evidence that the parties will be prejudiced by amendment of pleadings to join them. Hearing of the case has not begun. The decision in Phillips, Harrisons and Crosfield Ltd v. Kassam, [1982] KLR 458 is useful here.

I allow the application with costs.

Dated and Delivered at Kisii this …… Day of June, 2009

A.O. MUCHELULE

JUDGE

12. 6.2009

Before A. O. Muchelule – Judge.

Mongare cc.

Mr. Otieno for Applicant.

Court:- Ruling in open court.

A.O. MUCHELULE

JUDGE