Kariuki v Estate of Amos Ngata Muiruri

stated that in contracting to buy one acre of land from his late father, the Plainti acted jointly with the proposed 2nd Defendant. Mr Ngata Muiruri added that the subsequent agreement which voided the earlier agreement of August 22, 2012 was signed by Daniel Gacanja Githaiga showing that the said Daniel played a role in the matters pertaining to this suit and should therefore be added. 4. The proposed party led grounds of objection dated November 29, 2022 in opposition to the application as follows; a. The application is bad in law, vexatious and misconceived and should be dismissed with costs b. No cause of action has been disclosed as against the party sought to be enjoined in the suit which renders the application vexatious c. The party sought to be impleaded has no role to play either in the production of the completion documents referred to or the registration of transfer and is therefore not a necessary party in these proceedings. 5. The advocates on record agreed to prosecute the application by ling of written submissions. The applicant quoted order 1 rule 3 and 5 which provides that; 6. The Applicant submits that the pleadings and the documents led demonstrate that Daniel Gacanja Githaiga was very active in the subject matter of this dispute. He referred the Court to paragraph 3(1) of the Plaint and paragraphs 4 and 7 of the Defencce as well as the document number one in their list that have all set out the role of Daniel Gacanja Githaiga in the transaction. Paragraph 3(1) stated thus; “ The agreement for sale was between the deceased, the Plainti and one Daniel Gacanja Githaiga” Par 4 of Defence: 7. The proposed 2nd Defendant submitted that nothing has been pleaded to warrant his joinder stating that the supporting adavit is very scanty and does not disclose any tangible issues. He also recited the provisions of order 1 rule 3 submitting that the position contemplated in that order does not subsist in this suit. Further, he referred this court to the case of Departed Asians Property Custodian Board vs Jaffer Brothers Ltd (1999) EA 55 where the Court held thus; 8. I have considered the application, the grounds in support of and against and the submissions rendered. At paragraph 3 of the Plaint, it is pleaded that the agreement was between the deceased (Defendant), the Plainti and Daniel Gacanja Githaiga. A copy of the sale agreement is available in the list of documents which agreement conrm the facts stated in the plaint and statement of Defence. The Plainti has not pleaded that he is bring this suit on his behalf and on behalf of the proposed Defendant. 9. The objection by the proposed Defendant that he has no role to play either in the production of the completion documents referred to or in the registration and transfer makes sense. However, Daniel Gacanja is indicated as a co-purchaser and therefore enjoys a right to bring a suit against the estate of the deceased Defendant. The Applicant is entitled to bring the present claim to avoid a similar claim bring brought in the future whether the Plainti herein succeeds or loses. 10. The proposed party has an option to join the suit as a second Defendant or as a co-plainti because this court nds him a necessary party going by the facts pleaded by both sides. In a nutshell, I nd the chamber summons application dated September 16, 2022 as merited and allow it on terms that Daniel https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18169/eng@2023-04-27 2

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Gacanja Githaiga is joined to this suit. The Court grants him 14 days to elect which side to join and thereafter the plaint shall be amended to reect the joinder. 11. Each party to bear their respective costs of the application. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 27TH DAY OF APRIL 2023 A. OMOLLO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18169/eng@2023-04-27 3

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