Oyugi v Kabiru & 3 others; Odida (Applicant)

c. 3. That upon such substitution is (sic) undertaken, the pleadings herein be amended together with compliance documents. The application is based on the grounds on its face and supported by the adavit sworn by Elijah Ochieng Odida on July 26, 2022. Factual Background. 4. This suit was commenced by way of a Plaint dated June 17, 2019 which plaint was subsequently amended on October 22, 2019. 5. The prayers sought in the Amended Plaint are as follows: a. A declaration that the Plainti herein is the rightful and legal owner of the suit plot no LR 12249/127 measuring 0.082 hectare in Nakuru Municipality b. A permanent order of injunction restraining the Defendants herein by themselves, their employees, agents and or any other person acting under their authority from dealing, occupying, purporting to transfer or in any other manner interfering with the Plainti’s rights over the suit property. c. General damages. d. Mesne prots e. Costs of this suit. f. Any other or further relief which this honorable court may deem t to grant. 6. The Defendants/Respondents led their statement of Defence dated November 4, 2021 wherein they seek that the Plainti’s suit be dismissed. 7. The application under consideration rst came up for hearing on July 27, 2022 when the court directed that it be served upon the Defendants/Respondents and scheduled it for hearing on September 22, 2022. 8. The application was set down for hearing on numerous occasions but did not proceed. Finally, on November 9, 2022 the court issued directions that it be heard by way of written submissions. 9. It was mentioned on November 23, 2022 to conrm ling of submissions and was reserved for ruling. The Applicant’s Contention. 10. The Applicant contends that he is the son of Jechonia Odida Oyugi the Plainti herein. 11. He further contends that in the Amended Plaint dated October 22, 2019, the Plainti seeks a declaration that he is the rightful owner of Plot No LR 12249/127 measuring 0.082 hectares in Nakuru Municipality and a permanent injunction restraining the Defendants/Respondents herein by themselves, their employees, agents and/or any other person acting under their authority from dealing, occupying, purporting to transfer or in any other manner interfering with the Plainti’s rights over the suit property. 12. He also contends that the Plainti is experiencing hearing diculties occasioned by his old age and cannot therefore eectively continue with these proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16669/eng@2023-03-28 2

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13. It is his contention that he wishes to substitute the Plainti in these proceedings in his capacity as his son to enable him best represent his interests. 14. He ends his deposition by stating that it is in the interest of justice and fairness that he is allowed to take over these proceedings on behalf of the Plainti. Defendants’/respondents’ Contention. 15. In response to the said application, the Defendants/Respondents led the Grounds of Opposition dated November 7, 2022. The grounds are as follows: a. That the application is a non-starter having been made by a person who is not a party to the suit. b. That the alleged Plainti/Applicant has utterly failed to meet the minimum threshold for grant of an order for substitution of the Plainti. c. That the application and orders sought are unknown in law and in any case, there exist less drastic and/or other means by which the Plainti’s case can proceed. d. That the application is otherwise a delay gimmick and an abuse of the court process intended to deny the defendants an opportunity to face and/or crossexamine their accuser Analysis And Determination. 16. Neither of the parties led their submissions to the application. 17. Upon consideration of the application and the grounds of opposition, the only issue that arises for determination is whether Jechonia Odida Oyugi should be substituted by Elijah Ochieng Odida as the Plainti herein. 18. Order 1 Rule 10 provides as follows: (1) Where a suit has been instituted in the name of the wrong persons as Plainti, or where it is doubtful whether it has been instituted in the name of the right Plainti, the court may at any stage of the suit, if satised that the suit has been instituted through a bona de mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as Plainti upon such terms as the court thinks t. (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) No person shall be added as a Plainti suing without a next friend or as the next friend of a Plainti under any disability without his consent in writing thereto. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16669/eng@2023-03-28 3

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(4) 19. 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. An analysis of Order 1 Rule 10 (1) reveals that substitution or joinder may be ordered in the following circumstances: a. Where a suit has been instituted in the name of the wrong person as Plainti. b. Where it is doubtful that it has been instituted in the name of the right Plainti. 20. Sub-section 1 further provides that where the court is satised that the suit has been instituted through a bonade mistake and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as Plainti. 21. The ground upon which the Applicant brings the present application is that he is the son to the Plainti Jechonia Odida Oyugi who has allegedly developed hearing diculties and cannot eectively continue with these proceedings. 22. I am of the view that this application ought to have been brought by the Plainti. The application describes Elijah Ochieng Odida as the Plainti/Applicant. This is erroneous. Elijah Ochieng Odida is a stranger to these proceedings. 23. Further, this court needs to be certain that the Plainti (Jechonia Odida Oyugi) has consented to this application and that he is certain the Applicant (Elijah Ochieng Odida ) that shall properly protect his interests. 24. The Applicant has failed to attach evidence demonstrating that he is the son of the Plainti and has also not attached any medical reports to demonstrate that indeed the Plainti is suering from such inrmity as would make his participation in this suit impossible. Disposition. 25. In the circumstances, I nd that the application led on July 27, 2022 lacks merit and is hereby dismissed with costs. 26. The Plainti is at liberty to explore other legal options to ensure that his suit proceeds without further delay. 27. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 28TH DAY OF MARCH, 2023 PURSUANT TO THE NOTICE ISSUED ON 22ND MARCH, 2023. L. A. OMOLLO JUDGE In the presence of: Mr. Gatonye for the 1st – 3rd Defendant No appearance for the Defendants. Court Assistant; Ms. Monica Wanjohi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16669/eng@2023-03-28 4

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