Ndaisi v Yusuf & 2 others

documents relating to the title of the suit land including documents of transfer and the green card had been fraudulently removed and replaced with letter of allotment as well as title issued to Ezekiel Kipkulei C Komen. A new lease thereof had also been prepared which was allegedly back dated to June 1, 1994. 5. The applicant contends that the fraudulent activities were instigated by Ezekiel Kipkulei C Komen and in the circumstances, the court should issue orders against the 2nd and 3rd defendants to stop their fraudulent schemes. Adding that the estate of the late Ndaisi Ngonyo stands to suer irreparable loss if the orders sought are not granted. 6. The proposed 2nd defendant opposed the application vide a Replying Adavit dated June 9, 2022. He contends that he is the registered owner of land parcel no 14720 having been issued with a certicate of title which he has availed as an annexure. He further avers that he has been in possession of the aforementioned parcel of land from the time it was allotted to him. 7. The 2nd respondent avers that the applicant has not exhibited any document to show that she owns the property of the 2nd respondent. Adding that the property being claimed by the plainti is dierent from his parcel. 8. The 3rd respondent was served but he never led any response thereof. 9. The provision of order 1 rule 10 of the Civil Procedure Rule provides that: 10. 11. (2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plainti or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added. (3) ….. (4) Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks t, on the original defendants”. In the case of Joseph Njau King’ori vs Robert Maina Chege & 3 others [2002] eKLR the court provided the guiding principle to be adhered to when an intending party is to be joined in a suit as follows; i. i. He must be a necessary party. ii. He must be a proper party. iii. In the case of the defendant there must be a relief owing from that of a defendant to the plainti. iv. The ultimate order or decree cannot be enforced without his presence in the matter. v. His presence is necessary to enable the court to eectively and completely to adjudicate upon and settle all questions involved in the suit.” This is a situation whereby the plainti is alluding to fraudulent activities having been undertaken in the acquisition of documents of ownership of the suit land by the 2nd respondent. On the other hand, the 2nd respondent is giving an account of how he came to acquire his property averring that his land https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13607/eng@2022-10-13 2

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is not the same as that of the plainti. I nd that the issues of fraud and ownership cannot be dealt with at this stage, and the proper platform to adjudicate such claims is in a trial. 12. At this juncture, it is important to note that the plainti has claimed that the property account of the plainti (read Ndaisi Ngonyo) is allegedly now in the name of Ezekiel Kipkulei C Komen). It is therefore important for the proposed defendants to come on board in this suit so that the court can eectively and completely adjudicate upon and settle all the questions being raised by the plainti and the proposed 2nd defendant. 13. It is pertinent to note that the suit was led close to 8 years ago and this court is not privy to what has been happening on the land. Thus the appropriate orders to give shall relate to the preservation of the land and the maintenance of status quo. In Shimmers Plaza Limited vs. National Bank of Kenya Limited[2015] eKLR the Court of Appeal dened status quo as follows: “ Status quo in normal English parlance means the present situation the way thing stands as at the time the order is made, the existing state of things.” 14. In the nal analysis, the application dated April 28, 2022 is allowed in the following terms; i. Ezekiel Kipkulei C Komen and the registrar of titles are hereby joined in this suit as the 2nd and 3rd defendants respectively. ii. The plainti is to amend his plaint accordingly and take out and serve sermons to enter appearance against the two new parties within a period of 21 days otherwise the orders given herein shall lapse. iii. The 2nd and 3rd defendants are to enter appearance and le their pleadings thereof within 21 days from the date of service. iv. An order is hereby issued for maintenance of status quo in relation to occupation and registration of land parcel no 14720. v. An order of inhibition is to be registered against land parcel no 14720 and the 3rd defendant is directed to act accordingly. vi. The costs of the current application shall abide the outcome of the suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS. LUCY N MBUGUA JUDGE In the presence of:M/s Njuki holding brief for Mr Kitwa for applicant/plainti M/s Kiprop holding brief for Mutinda for defendant Allan Kamau for Proposed 3rd defendant Ochanda for 2nd intended respondent Court assistant: Eddel/Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13607/eng@2022-10-13 3

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