Case ID:158553

Ahmed Mohammed Khalid v Mary Nduta Wafula & 2 others; Collins Munyasia Wafula (Interested Parties) [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 128 of 2012

Parties:

Ahmed Mohammed Khalid v Mary Nduta Wafula, Carolyne Akinyi Wafula & Municipal Council of Bungoma; Collins Munyasia Wafula, Derrick Muganda Wafula & Valtare Andati Wafula (Interested parties)

Date Delivered:

27 May 2020

Case Class:

Civil

Court:

Environment and Land Court at Bungoma

Case Action:

Ruling

Judge(s):

Boaz Nathan Olao

Citation:

Ahmed Mohammed Khalid v Mary Nduta Wafula & 2 others; Collins Munyasia Wafula (Interested Parties) [2020] eKLR

Advocates:

Mr Were h/b for Mr Okatchi for the 2nd Defendant

Court Division:

Environment and Land

County:

Bungoma

Advocates:

Mr Were h/b for Mr Okatchi for the 2nd Defendant

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC CASE NO. 128 OF 2012

AHMED MOHAMMED KHALID ……….........………………… PLAINTIFF

VERSUS

MARY NDUTA WAFULA …………..………………….……1

ST

DEFENDANT

CAROLYNE AKINYI WAFULA ……………………….…. 2

ND

DEFENDANT

MUNICIPAL COUNCIL OF BUNGOMA ………………... 3

RD

DEFENDANT

AND

COLLINS MUNYASIA WAFULA ……...….……. 1

ST

INTERESTED PARTY

DERRICK MUGANDA WAFULA ……...………. 2

ND

INTERESTED PARTY

VALTARE ANDATI WAFULA ………......…...…... 3

RD

INTERESTED PARTY

R U L I N G

It is an un-disputed fact that the land parcel

NO BUNGOMA TOWN/291

(the suit property) is currently registered in the names of

CAROLINE AKINYI WAFULA

who is the 2

nd

defendant herein. That property is the subject of this suit in which the plaintiff, as per the further amended plaint dated 27

th

July 2018, seeks Judgment that

MARY NDUTA WAFULA

(the 1

st

defendant) do remove the caution lodged thereon and that the 2

nd

defendant surrenders the lease to facilitate its transfer to the plaintiff or in the alternative, that the plaintiff is entitled to compensation by way of refund of the sums spent in renovating it. The plaintiff’s claim is based on the fact that he bought the suit property in a public auction. This has been denied by the 2

nd

and 3

rd

defendants in their amended defences dated 7

th

April 2018 and 23

rd

August 2018 respectively.

It is also not in dispute that as per the Certificate of Search dated 27

th

November 2012, the 2

nd

defendant is registered as the proprietor of the suit property

“to hold in trust for other 6 children, brothers and sisters.”

COLLINS MUNYASIA WAFULA

,

DERRICK MUGANDA WAFULA

and

VALTARE ANDATI WAFULA

(herein the 1

st

, 2

nd

, and 3

rd

interested parties) have, by their Notice of Motion dated 13

th

December 2019 sought to be enjoined as interested parties in this suit on the basis that the suit property belonged to their late father

BARTHOLOMEO WAFULA

who had rented it to the plaintiff.

The 2

nd

defendant has opposed the application and filed a replying affidavit dated 17

th

December 2020 (must have meant 17

th

December 2019). In paragraph 2 of the said replying affidavit, the 2

nd

defendant has deponed that she is in

“total opposition to the said application.”

However, in paragraph 3 of the said replying affidavit, the 2

nd

defendant has deponed as follows: -

“That the Applicants has (sic) failed to make material disclosure as regards the ownership status of the property in that, as clearly shows on the title documents, the property is registered in my names and I do hold the same in trust for my siblings, the Applicants included”

And in paragraph 4, she adds: -

4: “That the property was initially registered in the name of my late father BARTHOLOMEW WAFULA LULE and before his demise, he transferred the same onto my names to hold on behalf of my siblings as indicated herein above.”

It is clear from the above averments that the interest of the interested parties in the suit property is conceded by the 2

nd

defendant. The plaintiff, 1

st

defendant and 3

rd

defendant do not oppose the application. It is in light of the above averments by the 2

nd

defendant and the fact that the other parties do not oppose the application that when the parties appeared before me on 26

th

February 2020 for purposes of canvassing the same, I implored them to try and agree on the same. Surprisingly,

MR OKATCHI

counsel for the 2

nd

defendant and whose brief was being held by

MR WERE

insisted that the application be determined on the basis of the parties’ respective affidavits.

While it is the Constitutional right of parties to have their disputes determined by the Court, it is also in the interest of the expeditious disposal of cases that in appropriate situations, counsel should advise their clients to concede to obvious applications such as this one. Judicial time is scarce. So too are other resources. I don’t think they should be expended in determining applications which, with proper advice, the parties can agree on so that the Court can devote it’s time determining the real disputes in a case. This is one such application. The title documents clearly show that the 2

nd

defendant is registered as the proprietor of the suit property in trust for her siblings. She has admitted as much in her replying affidavit. Yet her counsel has insisted that this Court delivers a ruling on the same. Surely this precious judicial time could have been spent by the parties complying with the pre – trial directions so that the real dispute in this case can be expeditiously determined. I implore counsel to always look at the broader picture when faced with such applications.

The bottom line really is that although there is a replying affidavit ostensibly filed in opposition to the application dated 13

th

December 2019, that application is infact conceded by the 2

nd

defendant who was the only person that has

“objected”

to the same. And even if there was any real objection to the same, it is un-likely that it would have carried the day given the un-controverted fact that the Certificate of Search clearly shows that the 2

nd

defendant holds the suit property in trust for her siblings.

Order 1 Rule 10(2) of the Civil Procedure Rules

empowers the Court to enjoin any person in proceedings if his presence before the Court: -

“………. may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions in the suit …….”

For a person to be enjoined in a suit, he must demonstrate an interest that is identifiable in the subject of the suit. It must also be shown that if the party is not enjoined, orders prejudicial to his interest may be made in his absence. To avoid a multiplicity of suits, it is important to bring all such persons on board so that all issues concerning the matter in dispute are determined once and for all. As persons for whom the suit property is held by the 2

nd

defendant in trust, a fact that the 2

nd

defendant has readily conceded, there can be no clearer case for granting the orders sought by the intended interested parties.

The up – shot of the above is that I make the following orders with regard to the application dated 13

th

December 2019: -

1. The application is allowed.

2. The Interested parties to file and serve their pleadings on all the other parties within 14 days of this ruling.

3. As the 2

nd

defendant and the Interested parties are siblings, there will be no orders as to costs.

4. I can see from the valuation report dated 24

th

November 2007 that the suit property was valued at Kshs. 2,500,000/=. I take the view that it’s current value must still be within the pecuniary jurisdiction of the Chief Magistrate’s Court. I therefore, intend to make orders transferring this suit to that Court unless the parties convince me otherwise.

5. Mention on 15

th

June 2020 for appropriate orders.

Boaz N. Olao.

J U D G E

27

th

May 2020.

Ruling dated, delivered and signed at Bungoma this 27

th

day of May 2020.

Boaz N. Olao.

J U D G E

27

th

May 2020.

This Ruling was due on 11

th

June 2020. However, in view of the measures restricting Court operations due to the

COVID – 19

pandemic, and in light of the directions issued by the Honourable Chief Justice on 23

rd

April 2020, it is brought forward and delivered through electronic mail with notice to the parties.

Boaz N. Olao.

J U D G E

27

th

May 2020.