[2022] KEELC 562 (KLR)
The court found that Eddy Peter Ndungu Kimemiah, as the director of the 4th Defendant and the sole witness for that party, is already sufficiently involved in the proceedings. His joinder as a defendant is unnecessary because he can address all relevant questions in his capacity as a witness. The application for...
Source-derived case information.
- Citation
- [2022] KEELC 562 (KLR)
- Parties
- Plaintiff: Ruth Wambui Kimani (suing as an Administratix of the Estate of the late Francis Kimani Mungu alias Kimani Mungai); Plaintiff: Joseph Mwangi Njeri; Defendant: Agnes Kagure Kariuki; Defendant: The Chief Land Registrar; Defendant: Francis Kimani Mungai; Defendant: Kimemiah Engineering Co. Ltd; Applicant: Eddy Peter Ndungu Kimemiah
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 345 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder of Intended Defendant
- Outcome
- application dismissed
- Judges
- LC Komingoi
- Legal Topics
- Joinder of Parties, Power of Attorney, Land Transfer Disputes
- 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
Ruth Wambui Kimani (suing as an Administratix of the Estate of the late Francis Kimani Mungu alias Kimani Mungai)
Plaintiff
Joseph Mwangi Njeri
Plaintiff
Agnes Kagure Kariuki
Defendant
The Chief Land Registrar
Defendant
Francis Kimani Mungai
Defendant
Kimemiah Engineering Co. Ltd
Defendant
Eddy Peter Ndungu Kimemiah
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder of Intended Defendant
Legal Issues
- 1 Whether Eddy Peter Ndungu Kimemiah should be enjoined as the 5th Defendant in the suit.
- 2 Whether the application for joinder is merited under the Civil Procedure Rules.
Ratio Decidendi
The court found that Eddy Peter Ndungu Kimemiah, as the director of the 4th Defendant and the sole witness for that party, is already sufficiently involved in the proceedings. His joinder as a defendant is unnecessary because he can address all relevant questions in his capacity as a witness. The application for joinder does not meet the threshold under Order 1 Rule 10 of the Civil Procedure Rules, as his presence as a party is not required for the effectual and complete adjudication of the dispute. The court therefore dismissed the application for lack of merit.
Court Disposition
application dismissed
Orders
- The application to enjoin Eddy Peter Ndungu Kimemiah as the 5th Defendant is dismissed.
- Costs of the application to abide the outcome of the main suit.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT NAIROBI
ELC NO 345 OF 2018
RUTH WAMBUI KIMANI (suing as an Administratix of the Estate of the late
FRANCIS KIMANI MUNGUI ALIAS KIMANI MUNGAI....1ST PLAINTIFF
JOSEPH MWANGI NJERI..........................................................2ND PLAINTIFF
-VERSUS -
AGNES KAGURE KARIUKI....................................................1ST DEFENDANT
THE CHIEF LAND REGISTRAR...........................................2ND DEFENDANT
FRANCIS KIMANI MUNGAI.................................................3RD DEFENDANT
KIMEMIAH ENGINEERING CO. LTD................................4TH DEFENDANT
AND
EDDY PETER NDUNGU KIMEMIAH.......... 5TH INTENDED DEFENDANT
RULING
1. This is the Notice of Motion dated 20th August 2021 brought under order 1 rule 10, order 51 rule 1 of the Civil Procedure Rules, Section 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya, Article 159 (2d) of the Constitution and all the enabling provisions of law.
2. It seeks orders;
a. Spent
b. Spent
c. That this honourable court be and is hereby pleased to enjoin the interested co-plaintiff, herein EDDY PETER NDUNGU KIMEMIA, in this suit as the 5th Defendant.
d. Costs of this application be provided for.
3. The grounds are on the face of the application and are set out in paragraphs 1 to 12.
4. The application is supported by the affidavit of Joseph Mwangi Njeri, the 2nd Plaintiff/Applicant sworn on the 20th May 2021.
5. The application is opposed. There is a replying affidavit sworn by Agnes Kagure the 1st Defendant/Respondent herein on the 8th October 2021. She stated that she had authority of the 3rd Defendant to swear this affidavit.
6. The 2nd and 4th Defendants did not file any responses to the application.
7. The Notice of Motion was canvassed by oral submissions on 25th November 2021.
8. I have considered the notice of motion and the affidavit in support. I have also considered the replying affidavit and the rival submissions. The issue for determination is whether this application is merited.
9. The 2nd Plaintiff seeks that Eddy Peter Ndungu Kimemiah be made the 5th Defendant in this suit. The grounds advanced are that the 5th Defendant was the donee of the Power of Attorney that was used unlawfully transfer the suit property.
10. I have gone through the court record. There is a witness statement by Eddy peter Ndungu Kimemiah dated 3rd September 2019. He states that he is the Director of the 4th Defendant in this case. He states that he sold the suit property to Kimani Mungai on or about the year 1997.
11. It is not in dispute that the intended 5th Defendant is a witness in this case by virtue of being the director of the 4th Defendant. He is the sole witness I believe he will be able to answer all the questions from the 2nd Plaintiff’s counsel when the time comes.
12. I find that it is not necessary for him to be made a party in this suit.
13. In conclusion, I find no merit in this application and the same is dismissed. Costs to abide the outcome of the main suit.
It is so ordered.
DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH DAY OF MARCH, 2022
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
Mr. Mirie for the 1st Plaintiff
Mr. Mariariia for the 2nd Plaintiff
Ms Shunda for Osundwa for the 1st and 3rd Defendants
No appearance for the 2nd and 4th Defendants
Steve - Court Assistant