Case ID:174763

NMN v MKN (suing as next friend of PKN

(being a person of unsound mind); Esther Wacu Kiharu & 11 others (Interested Parties) [2021] eKLR

Case Metadata

Case Number:

Civil Appeal (Application) 20 of 2020

Parties:

NMN v MKN (suing as next friend of PKN (being a person of unsound mind); Esther Wacu Kiharu, Peter Kimani Ndungu, David Ndwiga Njuguna, Martha Wangui Gitahi, Benard Bundi Mwai, Samuel Wagura Githinji, Jeremiah Kariuki Ireri, Patrick Muchoki, George Mari Ngugi, Rosemary Njeri Mucheru, Wilson Laibuni Gituma & Peter Wamai Nyaga (Interested Parties)

Date Delivered:

07 May 2021

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Ruling

Judge(s):

Martha Karambu Koome, Patrick Omwenga Kiage, Agnes Kalekye Murgor

Citation:

NMN v MKN (suing as next friend of PKN

(being a person of unsound mind); Esther Wacu Kiharu & 11 others (Interested Parties) [2021] eKLR

Advocates:

Mr Musyoki for the Interested Parties

Mr Thuo for the Applicant

Case History:

(An application for joinder as Interested Parties and Injunction pending the hearing and determination of this appeal, against the judgment orders of the High Court at Thika (Mbugua, J.) delivered on 2nd May, 2019 in ELC No 373 of 2017

Court Division:

Environment and Land

County:

Kiambu

Advocates:

Mr Musyoki for the Interested Parties

Mr Thuo for the Applicant

History Docket No:

ELC No 373 of 2017

History Judges:

Lucy Ngima Mbugua

History County:

Kiambu

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 COURT OF APPEAL

AT NAIROBI

(CORAM: KOOME, KIAGE & MURGOR JJ.A)

CIVIL APPEAL (APPLICATION) NO. 20 OF 2020

BETWEEN

NMN.......................................................................................................................APPLICANT

AND

MKN (Suing as next friend of PKN (being a person of unsound mind).......RESPONDENT

AND

1. ESTHER WACU KIHARU......................................................1

ST

INTERESTED PARTY

2. PETER KIMANI NDUNGU...................................................2

ND

INTERESTED PARTY

3. DAVID NDWIGA NJUGUNA.................................................3

RD

INTERESTED PARTY

4. MARTHA WANGUI GITAHI.................................................4

TH

INTERESTED PARTY

5. BENARD BUNDI MWAI.......................................................5

TH

INTERESTED PARTY

6. SAMUEL WAGURA GITHINJI............................................6

TH

INTERESTED PARTY

7. JEREMIAH KARIUKI IRERI..............................................7

TH

INTERESTED PARTY

8. PATRICK MUCHOKI...........................................................8

TH

INTERESTED PARTY

9. GEORGE MARI NGUGI......................................................9

TH

INTERESTED PARTY

10. ROSEMARY NJERI MUCHERU....................................10

TH

INTERESTED PARTY

11. WILSON LAIBUNI GITUMA..........................................11

TH

INTERESTED PARTY

12. PETER WAMAI NYAGA...................................................12

TH

INTERESTED PARTY

(An application for joinder as Interested Parties and Injunction pending the hearing and

determination of this appeal, against the judgment orders of the High Court

at Thika (Mbugua, J.) delivered on 2

nd

May, 2019

in

ELC No 373 of 2017

*****************

RULING OF THE COURT

The Notice of motion dated 21

st

February 2020 is brought by

the

Interested Parties

seeking to be joined in the appeal and also seeking an injunction restraining

the respondent, M KN (Suing As Next

Friend of PKN (being a person of unsound mind)

whether by themselves as agents, servants, employees from demolishing, transferring, trespassing, excising, fencing or in any way interfering with the parcel of land known as

Ruiru East/Block x/xxx

(the subject land)

pending the hearing and determination of an appeal.

The application was brought on grounds that the Interested Parties are, and have been in active possession of the subject land, where they have been enjoying quiet possession since 2005. They also claim to have acquired share certificates for the respective parcels of the subject land that they occupy. They however claim that they did not participate in the proceedings in the Environment and Land Court despite the court having been notified of their presence on the subject land. They blame the disputing parties

ELC No 373 of

2017

for failure to notify them of the proceedings, that they are adversely affected by the trial court’s determination and they stand to suffer substantial irreparable loss should this Court decline to allow them to join in the appeal.

They further seek an injunction against the trial court’s orders for the reason that they have established a prima facie case with a chance of success as set out in

Giella vs Cassman Brown Co. Ltd

[1973] EA 358

.

Learned counsel for the Interested Parties,

Mr Musyoki

stated that they would rely on their written submissions in their entirety. Counsel also informed us that the Interested Parties would abandon the other prayers in the application including the prayer for an order of injunction.

On his part

Mr Thuo

, learned counsel for

the applicant, NM

N

informed us that the applicant would not be opposing the application for joinder. Though the respondent was served, there was no appearance, and neither did they file any written submissions.

Upon considering the application, the affidavit in support and the submissions, it is apparent that the Interested Parties are persons directly affected by the appeal in terms of

rule 77

of the Court’s rules, and having regard to the rules of natural justice, we consider that the interest of justice necessitates that they be joined in the appeal.

Accordingly, we allow the application to the extent that the 12 individuals named in the title be and are hereby joined in the appeal as Interested Parties. We direct that they be served with a copy of the appeal and other related documents. Costs in the appeal.

It is so ordered.

Dated and delivered at Nairobi this 7

th

day of May, 2021.

M. K. KOOME

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

JUDGE OF APPEAL

P.O. KIAGE

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

JUDGE OF APPEAL

A.K. MURGOR

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

JUDGE OF APPEAL

I certify that this is a true copy of the original.

Signed

DEPUTY REGISTRAR