[2014] KEELC 579 (KLR)
The court found that the application for substitution of deceased parties, joinder of the intended third party, and interim preservation orders was merited. The applicants demonstrated that the original parties were deceased and that the intended third party, as the wife of the deceased 2nd defendant, had a direct...
Source-derived case information.
- Citation
- [2014] KEELC 579 (KLR)
- Parties
- Plaintiff: Virginia Njeri Ndungu; Plaintiff: Peter Mburu Ndung'u; Defendant: Samson Waweru; Defendant: Samson Waweru Gitau; Respondent: Esther Njeri Waweru; Applicant: Paul Maina Ndung'u; Applicant: Stephen Mbugua Ndung'u
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4 of 2009
- Procedural Posture
- Civil Case / Ruling on Application for Substitution, Joinder, and Interim Orders
- Outcome
- application granted as prayed
- Judges
- A Ombwayo
- Legal Topics
- Substitution of Parties, Joinder of Third Party, Interlocutory Injunctions, Fraudulent Land Transfer
- 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
Virginia Njeri Ndungu
Plaintiff
Peter Mburu Ndung'u
Plaintiff
Samson Waweru
Defendant
Samson Waweru Gitau
Defendant
Esther Njeri Waweru
Respondent
Paul Maina Ndung'u
Applicant
Stephen Mbugua Ndung'u
Applicant
Procedural Posture
Civil Case / Ruling on Application for Substitution, Joinder, and Interim Orders
Legal Issues
- 1 Whether leave should be granted to substitute deceased parties with legal representatives.
- 2 Whether the intended third party should be enjoined in the suit.
- 3 Whether interim orders for restriction and maintenance of status quo should be granted to preserve the suit property.
Ratio Decidendi
The court found that the application for substitution of deceased parties, joinder of the intended third party, and interim preservation orders was merited. The applicants demonstrated that the original parties were deceased and that the intended third party, as the wife of the deceased 2nd defendant, had a direct interest in the subject matter. Allegations of fraud and risk of disposal of the suit land justified the grant of interim orders to preserve the property and maintain the status quo. The absence of opposition further supported the grant of the orders as prayed, ensuring the suit could proceed to determination on its merits without risk of injustice or frustration of the court...
Court Disposition
application granted as prayed
Orders
- Leave is granted to substitute the 2nd defendant with the intended third party, Esther Njeri Waweru.
- Leave is granted to substitute the 1st plaintiff with Stephen Mbugua Ndung'u and Paul Maina Ndung'u.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
ENVIRONMENT AND LAND COURT
CIVIL CASE NO.4 OF 2009
VIRGINIAH NJERI NDUNGU)
PETER MBURU NDUNG'U )....................PLAINTIFFS
VERSUS
SAMSON WAWERU
SAMSON WAWERU GITAU..................DEFENDANTS
AND
ESTHER NJERI WAWERU........INTENDED THIRD PARTY
AND
PAUL MAINA NDUNG'U
STEPHEN MBUGUA NDUNG'U..............APPLICANTS
R U L I N G
The application dated 22/2/2013 is not opposed. There is an affidavit of service on record. The applicant prays for orders that leave be granted to extend time and/or substitute the 2nd defendant with the intended third party and to substitute the 1st plaintiff with Stephen Mbugua Ndung'u and Paul Maina Ndung'u. Moreover that a restriction be placed in Murang'a Lands Office against land parcel LOC.7/KAMAHUHA/644 till this application is heard and determined. Lastly that Status quo be maintained in the suit land till this case is heard and determined and any party failing to comply with the said court order be jailed for contempt.
The application is based on grounds that both the 1st plaintiff and 2nd defendant are deceased and that the case involves fraud whereby the 2nd defendant changed his names by an affidavit to read the 1st defendant to acquire the suit land. The said 2nd defendant died soon thereafter before this suit commenced. The intended third party is the wife of the 2nd defendant and has been using all means to circumvent justice. The 2nd defendant had at once issued a notice of eviction to the plaintiffs. He is also alleged to have fraudulently used a correction of name clause to have the suit land transferred to his name and is a stranger to the suit premises and only used mischief due to the similarity of his name Samson Waweru Gitau to the original proprietor Samson Waweru. The plaintiffs claim to be the rightful owners of the suit land and believe that only a jail term can stop the intended third party from doing mischief. There is a danger of the suit land being disposed, sold and alienated to further parties to defeat the court process. The intended third party ought to be enjoined in this suit to conclude this matter. The plaintiffs fear that they will suffer irreparable loss and damage.
I have considered the application, the supporting affidavit and do find the same to be merited and same is granted as prayed.
Dated, signed and delivered at Nyeri this 20th day of June 2014.
A. OMBWAYO
JUDGE