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Original judgment

Gachunia v Karuba & 24 others

Gachunia v Karuba & 24 others (Environment & Land Case 277 of 2018) [2022] KEELC 15170 (KLR) (5 December 2022) (Ruling) Neutral citation: [2022] KEELC 15170 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAKURU ENVIRONMENT & LAND CASE 277 OF 2018 FM NJOROGE, J DECEMBER 5, 2022 BETWEEN ROSEMARY N. GACHUNIA .................................................................... PLAINTIFF AND CATHERINE KARUBA & 24 OTHERS ............................................. DEFENDANT RULING 1. The hearing notice appears to have been served upon the Land Registrar Naivasha. That is not tallying with the amended plaint which states that the case is against the Land Registrar Nakuru. I have had a discussion in open court with Mr Karanja and Mr Olonyi appearing for the plainti and for the 1st – 23rd defendants respectively and it is common ground that the omission to amend the plaint to read “Land Registrar Naivasha” instead of “Land Registrar Nakuru” may occasion this matter some diculties down the line. 2. Further, procedural justice will not be seen to have been served since there is no adavit of service of the summons issued afresh on 8/6/2022 as well as the amended plaint on the Land Registrar Naivasha. It is the case that the Government ought to be sued through the oce of the Attorney General as a defendant representing the ocers sought to be held culpable and this is the requirement in section 12 of the Government Proceedings Act. 3. However, there has been a proliferation of suits in which public servants have been joined to suits by way of their ocial titles without joining the Attorney General for reasons unknown and this inevitably leads process servers to eect service not upon the Attorney General but on those public ocials directly sometimes leading to crisis such as the one facing this case now. 4. The courts have been adjudicating matters in which such joinder has been eected in the past and orders have issued and since that has been the practice it is clear it is possible to nalise a case without https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15170/eng@2022-12-05 1

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the Attorney General being joined as a party although in my view it would have been better and safer to have the Attorney General sued and described as “being sued on behalf of” the public ocer named. 5. That said, this court nds that though both counsel had earlier this morning conrmed that they were ready for the hearing, it cannot proceed to hear this case today and it must await proper procedural steps to be undertaken by the plainti. 6. Consequently, I adjourn this hearing to 6/3/2023 and I order as follows: 1. The plainti shall within 14 days from today serve the Attorney General’s oce, Nakuru and the Land Registrar Naivasha with the summons and shall le an adavit of service to that eect. 2. Since Mr Karanja acknowledges that the proper Land Registry bearing records of the suit land now is in Naivasha subsequent to the transfer of those records from Nakuru some time back, it is hereby ordered that the pleadings shall be deemed to be amended to read “Land Registrar Naivasha” as the 25th defendant herein and no further documents shall be led or accepted by the registry if it reads “Land Registrar Nakuru” in this suit henceforth. 3. The costs of this day shall be in the cause. DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT ON THIS 5TH DAY OF DECEMBER, 2022. MWANGI NJOROGE JUDGE, ELC, NAKURU https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15170/eng@2022-12-05 2

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