Case ID:160529

Gerald Mbagha Mwaviswa v Nairobi City County & another [2020] eKLR

Case Metadata

Case Number:

Environment & Land Case Civil Suit 644 of 2017

Parties:

Gerald Mbagha Mwaviswa v Nairobi City County & National Land Commission

Date Delivered:

25 Jun 2020

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Ruling

Judge(s):

Samson Odhiambo Okong'o

Citation:

Gerald Mbagha Mwaviswa v Nairobi City County & another [2020] eKLR

Advocates:

Ms. Munyasia for the 1st Defendant

Ms. Masinde for 2nd Defendant

Court Division:

Environment and Land

County:

Nairobi

Advocates:

Ms. Munyasia for the 1st Defendant

Ms. Masinde for 2nd Defendant

History Advocates:

One party or some parties represented

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 NAIROBI

ELC SUIT NO. 644 OF 2017

GERALD MBAGHA MWAVISWA.....................PLAINTIFF

=VERSUS=

NAIROBI CITY COUNTY.........................1

ST

DEFENDANT

NATIONAL LAND COMMISSION.........2

ND

DEFENDANT

RULING

What is before me is the 1

st

defendant’s Chamber Summons application dated 25

th

June, 2018 brought under Order 1 Rule 10(2) and (14) of the Civil Procedure Rules seeking an order that the 1

st

defendant be struck out of the suit. The application was brought on the ground that the 1

st

defendant was wrongly joined in the suit and that the plaintiff has no cause of action against the 1

st

defendant. The application was opposed by the plaintiff through a replying affidavit filed on 10th February, 2020. The plaintiff contended that the plaint raises a reasonable cause of action against the 1

st

defendant and that the application was an abuse of the process of the court. The plaintiff averred that the 1

st

defendant had a statutory role to play in the implementation of the reliefs sought in the plaint and as such it ought to remain as a party to the suit.

The application was heard on 10

th

February, 2020. I have considered the application together with the affidavit filed in opposition thereto by the plaintiff. In his plaint dated 11

th

September, 2017, the plaintiff averred that one, Himatlal Nandilal Bhatt had given him all that parcel of land known as L.R No. 209/1971/1, I.R 28194 (“the suit property”) as a gift in 2003. The plaintiff averred that the suit property was a leasehold from the Government of the Republic of Kenya. The plaintiff averred that the lease for the suit property expired on 31

st

October, 2003. The plaintiff averred that it applied to the 2

nd

defendant for the extension of the said lease but the 2

nd

defendant had failed to do so. The plaintiff sought judgment against the 1

st

and 2

nd

defendants for;

(i) A declaration that the plaintiff is the absolute owner of the suit property.

(ii) An order compelling the 1

st

and 2

nd

defendants to renew the lease in respect of the suit property forthwith.

I am in agreement with the 1

st

defendant that the plaint does not disclose any cause of action against the 1

st

defendant. The plaintiff’s complaint concerns the refusal by the 2

nd

defendant to renew the lease for the suit property. The plaintiff has stated that it is the 2

nd

defendant that has the mandate of renewing the said lease. The plaintiff has not mentioned any wrong that has been done by the 1

st

defendant to warrant its joinder to this suit. It is therefore my finding that the 1

st

defendant has been wrongly joined in the suit.

The upshot of the foregoing is that 1

st

defendant’s application dated 25

th

June, 2018 has merit. The application is allowed as prayed.

Delivered and Dated at Nairobi this 25

th

Day of June 2020

S. OKONG’O

JUDGE

Ruling delivered virtually through Microsoft Teams video conferencing platform in in the presence of:

The Plaintiff present in person

Ms. Munyasia for the 1

st

Defendant

Ms. Masinde for 2

nd

Defendant

Ms. C. Nyokabi-Court Assistant