Ngatiari v Njue & another

such of his ocers as he shall appoint do compare the same with ngerprints signed o as “Madris Kere Njue” appearing in the following documents exhibited in the supporting adavit of Joel Ngatiari sworn on 1st March 2022 and led herein and present a report on the ndings to the parties in this suit and this court within such time as this court shall direct: v. vi. a) The copy of Kenya National Identity Card Number 4249XXX marked Exhibit A. b) The chamber summons application dated 14th May 1991 led P&A Cause 179 of 1987 in the Matter of Estate of Joshua Njue Murere alias Njue Murere marked Exhibit B. c) The adavit of Madris Kere Njue sworn at Thika led in P&A Cause 179 of 1987 in the Matter of Estate of Joshua Njue Murere alias Njue Murere marked Exhibit C. d) Page 2 of the Assent dated 29th October 2009 between Madris Kere Njue and Joel Julius Ngatiari marked Exhibit D e) The Application for Transfer Business plot marked Exhibit E f) The replying adavit of Madris Kere Njue sworn at Thika on 22nd January 2015 marked Exhibit F. g) The statement of Madrid Kere Njue led herein on 13th August 2018 marked Exhibit G. That the plainti be granted leave to join the following persons as parties to this suit: a) Isabel Wakarima Nganga. b) The Chief Land Registrar. That the Plainti thereafter be at liberty to amend the Plaint led herein. 2. The application was supported by the grounds on its face. The same was also opposed by the respondents vide grounds of opposition dated 23rd March 2022. The respondents contended that the application is made in bad faith and the same will infringe on the rights of the 1st respondent and the same will be contrary to the rules of natural justice. It was also contended that the prayers for joinder of two more parties Isabel Wakarima Nganga and the Chief Land Registrar is made late in the day after the suit has been pending in court since it was led and further no evidence has been availed to show why they ought to be joined as a necessary party to the suit. 3. Pursuant to directions issued by this court on 18th May 2022, it was directed that the application be canvassed by way of written submissions upon which both parties complied. 4. In submissions dated 10th July 2022, the plainti submitted that he had purchased the suit property from the 1st defendant and therefore sought for the respective documents that were made in respect to the said transaction be examined. Counsel for the plainti also reiterated that the Directorate of Criminal Investigations would be a neutral party who would be best placed in assisting the court. 5. It was also submitted that since the orders would aect the proposed parties, the Court should consider their relevance and thus grant leave to enjoin them. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14731/eng@2022-11-10 2

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6. The defendants/respondents submitted that the application is in bad faith and the court equally lacked jurisdiction. It was submitted that the prayer to enjoin parties should be denied on the lack of prior action over the last eight years. Lastly, they submitted that the documents in question had not been admitted in evidence and their actions amounted to shing for evidence. 7. In submissions dated 3rd October 2022, they vehemently opposed the entire application while relying on the cases of Anthony Francis Wareham T/A Wareham & 2 others v Kenya Ports Office Savings Bank Ltd [2004] eKLR and M’Bito Ntiro v Mbae Mwirichia &Another [2018] eKLR. 8. Having considered the Application, the Adavits led in support and opposition to the same together with the written submissions of the parties. It is clear that the issues for determination in both applications before this court are as follows: 9. 10. i. Whether Isabel Wakarima Nganga and The Chief Land Registrar ought to be joined to these proceedings? ii. Whether the plainti should be granted the respective orders for expert aid and evidence? The principles for joinder are well outlined in order 1 rule 10 (2) of the Civil Procedure Rules as well as in Meme v Republic [2004]1 124, eKLR which are: a) Joinder of a person because his presence will result in the complete settlement of all questions involved in the proceedings; b) Joinder to provide a protection of a party who would otherwise be adversely aected in law; c) Joinder to prevent a likely course of proliferated litigation In the case of Shirvling Supermarket Limited v Jimmy Ondicho Nyabuti & 2 others [2018] eKLR, the court rendered itself as follows: “ The test in applications for joinder is rstly, whether an applicant can demonstrate he has an identiable interest in the subject matter in the litigation though the interest need not be such interest as must succeed at the end of the trial. Secondly, and in the alternative, it must be shown that the applicant is a necessary party whose presence is necessary in order to enable the court to eectually and completely adjudicate upon and settle all questions involved in the suit.” 11. For the proposed parties to be enjoined in this suit, their presence must be necessary to enable the court eectually and completely adjudicate and settle all questions involved in the suit. Hence, the applicant has to show that they have a stake in the proceedings and that their presence will help determine the issues at hand. 12. In the instant application, I have carefully reviewed the adavit in support of the application and further considered the submissions of the plainti but I have been unable to stumble upon any cogent reasons necessitating the joinder of Isabel Wakarima Nganga and the Chief Land Register. In summary the plainti has not made a case for their joinder. 13. On whether or not this court should direct the Director of Criminal Investigations (DCI) to examine the ngerprint of the rst defendant and direct the 1st defendant to undergo ngerprint examination, https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14731/eng@2022-11-10 3

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I wish to state that our legal system is an adversarial system where a party is required to avail all the material and evidence relevant to his case before trial. In the instant case, the applicant commenced this suit vide a plaint dated 8th October 2014 led in court on the same day. Order 3 rule 2 Civil Procedure Rules provides the documents to accompany the ling of a suit as follows: The adavit referred to under order 4 rule 1 (2); A list of witness to be called at the trial; written statements signed by the witnesses excluding expert witnesses; and copies of documents to be relied on at the trial including a demand letter before action. From the provisions of the rules, a party who les a suit is required to le his suit accompanied with all the evidentiary documents he intends to rely during the hearing. The application which the applicant has led seeks to procure more evidence in his favour to the prejudice of the Respondent. This court is an impartial umpire and cannot assist one of the parties to procure evidence to his advantage. 14. In view of the foregoing, this court cannot direct the DCI on the investigations to conduct on behalf of the applicant since no proper basis has been laid to warrant the same. The only instance where this court can assist the parties in determination of their disputes is way of issuing summons to witnesses where it is requested by any of the parties. Compelling an entity to prepare investigative reports in a civil suit ies against its mandate as an impartial umpire. 15. I am therefore not satised that the plainti/applicant has demonstrated any merit in the application and for the reasons outlined, I decline to grant the orders sought in the application dated 1st March 2022. The same is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10th DAY OF NOVEMBER 2022. E. K. WABWOTO JUDGE In the presence of: Mr. Waweru h/b for Mr. Kithinji Marete for the Plainti/Applicant. N/A for the 1st Defendant and 2nd Defendants Court Assistant; Caroline Nafuna. E. K. WABWOTO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14731/eng@2022-11-10 4

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