Case ID:159968

Albert Nganga Kithua v Ambrose Njiru Nthiga & 56 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 42 of 2019

Parties:

Albert Nganga Kithua v Ambrose Njiru Nthiga, Sospeter Muriuki Ireri, Joseph Muriithi Nyaga, Isaac Mucioki Kangi, Charles Ireri Kathagu, Robert Ngundi Ngari, Edward K. Mbogo, Benjamin Machaki Kanyenji, Genesio Njagi Mugo, Silas Njeru Kathagu, County Government Of Embu, Muriithi Michael Njue, Peter Njiru Mugeki, Robert Mbogo Njuki, Genesio Njagi Mugo, Loise Ngunyi Njue, Peter Ireri Nyaga, Beth Muthoni Irori, Irene Irima Mwaniki, Jerephasio Kithu Mugo, Stephen Murage Gichira, Nicholas Mbui Muturi, Mark Njeru Muriuki Sued on his Own Behalf as Well as the Next Friend to Alex Kinyua Njeru (Junior), Benjamin Nyaga Muriuki, Peter Nyaga Mugo, Mary Gikuu Irori, Mariam Nyakinyua Salim, Winfred Janewanjira Mbiti, Nguku Mwandike, Anthony Njiru Njeru, James Nyaga Ngari, James Ndwiga Muriuki, Bernard Kariuki Munyi, Joseph Ngari Muturi, Muriuki Ndindiru, Lincoln Ngari Ndindiru, Njiru Nthiga, Silas Njiru Nyaga, Benjamin Nyaga Ireri, Charles Njiru Mucunde, Jonathan Njuki Ireri, Peterson Kariuki Munyi, Sisco Nyaga Munyi, Joshua Mugo Kingangi, Michael Nyaga Irori, Bernard Mucindoa, Robert Njiru Kithinji, Richard Wachira Mugo, Anthony Muriuki Ndii, James Muriithi Ndii, Juliana Irobo, Peter Muriithi Muriuki, Moses Munyi Njuki, The Land Adjudication Officer Mbeere, The District Surveyor Mbeere, The Land Registrar Mbeere & Attorney General

Date Delivered:

28 May 2020

Case Class:

Civil

Court:

Environment and Land Court at Embu

Case Action:

Ruling

Judge(s):

Yuvinalis Maronga Angima

Citation:

Albert Nganga Kithua v Ambrose Njiru Nthiga & 56 others [2020] eKLR

Advocates:

Ms. Rose Njeru for the Plaintiff

Ms. Mutegi holding brief for Ms. Kithaka for 4th, 5th, 6th, 7th, 8th, 10th & 12th Defendants

Ms. Migwi for the 13th – 53rd Defendants

Court Division:

Environment and Land

Advocates:

Ms. Rose Njeru for the Plaintiff

Ms. Mutegi holding brief for Ms. Kithaka for 4th, 5th, 6th, 7th, 8th, 10th & 12th Defendants

Ms. Migwi for the 13th – 53rd Defendants

History Advocates:

One party or some parties represented

Case Outcome:

Application dismissed.

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 EMBU

E.L.C. CASE NO. 42 OF 2019

ALBERT NGANGA KITHUA.........................................................PLAINTIFF

VERSUS

AMBROSE NJIRU NTHIGA..................................................1

ST

DEFENDANT

SOSPETER MURIUKI IRERI...............................................2

ND

DEFENDANT

JOSEPH MURIITHI NYAGA................................................3

RD

DEFENDANT

ISAAC MUCIOKI KANGI.....................................................4

TH

DEFENDANT

CHARLES IRERI KATHAGU...............................................5

TH

DEFENDANT

ROBERT NGUNDI NGARI....................................................6

TH

DEFENDANT

EDWARD K. MBOGO............................................................7

TH

DEFENDANT

BENJAMIN MACHAKI KANYENJI...................................8

TH

DEFENDANT

GENESIO NJAGI MUGO......................................................9

TH

DEFENDANT

SILAS NJERU KATHAGU..................................................10

TH

DEFENDANT

COUNTY GOVERNMENT OF EMBU..............................11

TH

DEFENDANT

MURIITHI MICHAEL NJUE.............................................12

TH

DEFENDANT

PETER NJIRU MUGEKI....................................................13

TH

DEFENDANT

ROBERT MBOGO NJUKI..................................................14

TH

DEFENDANT

GENESIO NJAGI MUGO....................................................15

TH

DEFENDANT

LOISE NGUNYI NJUE.........................................................16

TH

DEFENDANT

PETER IRERI NYAGA.........................................................17

TH

DEFENDANT

BETH MUTHONI IRORI.....................................................18

TH

DEFENDANT

IRENE IRIMA MWANIKI....................................................19

TH

DEFENDANT

JEREPHASIO KITHU MUGO.............................................20

TH

DEFENDANT

STEPHEN MURAGE GICHIRA...........................................21

ST

DEFENDANT

NICHOLAS MBUI MUTURI................................................22

ND

DEFENDANT

MARK NJERU MURIUKI

sued on his own behalf as well as the

Next friend to

ALEX KINYUA NJERU (JUNIOR)...........23

RD

DEFENDANT

BENJAMIN NYAGA MURIUKI..........................................24

TH

DEFENDANT

PETER NYAGA MUGO.......................................................25

TH

DEFENDANT

MARY GIKUU IRORI..........................................................26

TH

DEFENDANT

MARIAM NYAKINYUA SALIM........................................27

TH

DEFENDANT

WINFRED JANEWANJIRA MBITI...................................28

TH

DEFENDANT

NGUKU MWANDIKE...........................................................29

TH

DEFENDANT

ANTHONY NJIRU NJERU..................................................30

TH

DEFENDANT

JAMES NYAGA NGARI........................................................31

ST

DEFENDANT

JAMES NDWIGA MURIUKI...............................................32

ND

DEFENDANT

BERNARD KARIUKI MUNYI.............................................33

RD

DEFENDANT

JOSEPH NGARI MUTURI...................................................34

TH

DEFENDANT

MURIUKI NDINDIRU...........................................................35

TH

DEFENDANT

LINCOLN NGARI NDINDIRU............................................36

TH

DEFENDANT

NJIRU NTHIGA.....................................................................37

TH

DEFENDANT

SILAS NJIRU NYAGA..........................................................38

TH

DEFENDANT

BENJAMIN NYAGA IRERI.................................................39

TH

DEFENDANT

CHARLES NJIRU MUCUNDE............................................40

TH

DEFENDANT

JONATHAN NJUKI IRERI...................................................41

ST

DEFENDANT

PETERSON KARIUKI MUNYI............................................42

ND

DEFENDANT

SISCO NYAGA MUNYI.........................................................43

RD

DEFENDANT

JOSHUA MUGO KINGANGI...............................................44

TH

DEFENDANT

MICHAEL NYAGA IRORI

.....................................................

45

TH

DEFENDANT

BERNARD MUCINDOA

.........................................................

46

TH

DEFENDANT

ROBERT NJIRU KITHINJI

....................................................

47

TH

DEFENDANT

RICHARD WACHIRA MUGO

................................................

48

TH

DEFENDANT

ANTHONY MURIUKI NDII....................................................49

TH

DEFENDANT

JAMES MURIITHI NDII..........................................................50

TH

DEFENDANT

JULIANA IROBO.......................................................................51

ST

DEFENDANT

PETER MURIITHI MURIUKI.................................................52

ND

DEFENDANT

MOSES MUNYI NJUKI.............................................................53

RD

DEFENDANT

THE LAND ADJUDICATION OFFICER MBEERE..............54

TH

DEFENDANT

THE DISTRICT SURVEYOR MBEERE..................................55

TH

DEFENDANT

THE LAND REGISTRAR MBEERE.........................................56

TH

DEFENDANT

THE ATTORNEY GENERAL.....................................................57

TH

DEFENDANT

RULING

A.

INTRODUCTION

1. By a notice of motion dated 31

st

October 2019 expressed to be brought under

Sections 1A, 1B & 3A of the Civil Procedure Act (Cap. 21)

and

Order 10 (2), Order 5 Rule 15 (1) & 5 of the Civil Procedure Rules, 2010,

the 13

th

Defendant, Peter Njiru Mugeki, sought the following orders:

a.

That this honourable court be pleased to order that the name of the 13

th

Respondent herein be struck out and that land Parcel No. Mbeere/Kirima/4151 be removed from the proceedings herein.

b.

That in the alternative and without prejudice, the court do order a separate trial between the 13

th

Defendant/Respondent and the Plaintiff to the exclusion of other parties in respect to land Parcel Mbeere/Kirima/4151.

c.

That the costs of the application be borne by the Plaintiff/Respondent.

B.

THE 13

TH

DEFENDANT’S CASE

2. The said application was based upon the grounds set out on the face of the motion and supported by the 13

th

Defendant’s affidavit sworn on 31

st

October 2019. The gist of the application was that the 13

th

Defendant’s

Title No. Mbeere/Kirima/4151

(“parcel 4151”)

was not, and had never formed, part of

Title No. Mbeere/Kirima/1605

(“parcel 1605”)

which the Plaintiff was claiming in the suit. The Plaintiff, therefore, contended that there was no issue or dispute between the Plaintiff and him to be determined hence he was not a necessary party to the instant suit.

C.

THE PLAINTIFF’S RESPONSE

3. The Plaintiff filed a replying affidavit sworn on 13

th

November 2019 in opposition to the said application on several grounds. First, it was contended that granting the orders sought would be tantamount to determining the suit against the 13

th

Defendant without a hearing on the merits. Second, that the 13

th

Defendant had not presented any evidence to demonstrate his allegation that parcel 4151 was never part of parcel 1605. Third, that it would be a waste of judicial time and resources to have a separate trial for the claim against the 13

th

Defendant. Finally, it was contended that the application was vexatious and abuse of the court process.

D.

THE 13

TH

DEFENDANT’S SUBMISSIONS

4. The said application was prosecuted orally by Ms. Rose Migwi Advocate for the 13

th

Defendant on 4

th

February 2020. She prosecuted the application on the basis of the grounds set out in the notice of motion and the contents of the supporting affidavit. It was submitted that there was no nexus between parcel 1605 which the Plaintiff was claiming in the suit and parcel 4151. She, therefore, urged the court to have the 13

th

Defendant’s name struck out of the proceedings or in the alternative for a separate trial to be ordered with respect to the 13

th

Defendant only.

E.

THE PLAINTIFF’S SUBMISSIONS

5. The Plaintiff’s advocate, Ms. Rose Njeru, opposed the said application orally on the basis of the contents of the replying affidavit sworn by the Plaintiff on 13

th

November 2018. It was submitted that it would be prejudicial to the Plaintiff for the court to allow the application since it would have the effect of determining the rights of the parties before trial. She submitted that, in any event, the 13

th

Defendant had not demonstrated that parcel 4151 was not part of parcel 1605. She urged the court to dismiss the said application so as to grant the Plaintiff a chance to prove the fraud alleged against the Defendants at the trial.

F.

THE REST OF THE DEFENDANTS

6. The rest of the Defendants did not file any responses to the said application and neither did they tender any submissions at the hearing.

G.

THE ISSUES FOR DETERMINATION

7. The court has considered the 13

th

Defendant’s said application, the Plaintiff’s replying affidavit in opposition thereto as well as the oral submissions of the parties. The court is of the opinion that the main question for determination herein is whether there is any nexus between parcels 1605 and 4151 and consequently whether the 13

th

Defendant is a necessary party to the suit.

H.

ANALYSIS AND DETERMINATION

8. The 13

th

Defendant considered that he had been improperly joined in the suit since he contended that he had nothing to do with parcel 1605 which the Plaintiff is litigating about. He contended that his parcel No. 4151 was not and had never been part of parcel 1605 hence the Plaintiff had no legitimate claim against him. So, what is the evidence tendered by the 13

th

Defendant to demonstrate his allegation? The notice of motion dated 31

st

October 2019 is supported by a bare affidavit without any exhibits or annexures thereto. The 13

th

Defendant, therefore, chose to rely on his word only.

9. The court has perused the documents filed by the Plaintiff both in support of the suit and those filed in support of his application for interim orders dated 23

rd

September 2019. The court is unable to find any documents which give a complete history of parcel 1605 and its sub-divisions. The court has noted that the parties did not exhibit a copy of the land register for parcel 1605. The various certificates of official search on record do not show the history of those parcels and the chain of sub-division. They only indicate the current registered proprietors and the existing encumbrances against the titles.

10. The court is thus of the opinion that the 13

th

Defendant has failed to demonstrate that there is no nexus between parcel 1605 and parcel 4151. It may have assisted the court to ascertain the history of parcel 4151 if the 13

th

Defendant had provided a complete record of its history either through survey records or the land registers. The burden of proof in that respect squarely rested upon the 13

th

Defendant as provided for under

Section 107

of the

Evidence Act (Cap. 80).

The said section stipulates that:

“(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

I.

CONCLUSION AND DISPOSAL ORDER

11. The upshot of the foregoing is that the court finds and holds that the 13

th

Defendant has failed to discharge his burden of proof with respect to the orders sought. Accordingly, the court finds no merit in the notice of motion dated 31

st

October 2019 hence the same is hereby dismissed in its entirety with costs to the Plaintiff.

12. It is so decided.

RULING DATED

and

SIGNED

in Chambers at

EMBU

this

28

TH

DAY

of

MAY 2020.

Ruling delivered via zoom platform in the presence of Ms. Rose Njeru for the Plaintiff, Ms. Mutegi holding brief for Ms. Kithaka for 4

th

, 5

th

, 6

th

, 7

th

, 8

th

, 10

th

& 12

th

Defendants; Ms. Migwi for the 13

th

– 53

rd

Defendants and in the absence of the rest of the parties.

Y.M. ANGIMA

JUDGE

28.05.2020