Gathithi

provisions of the law and sought for the striking out the 2nd Respondent as a party to this suit. Including costs of the Application to borne by the Petitioner. 2. The grounds for the Application were that; the 2nd Respondent has been improperly joined as a party to the suit; that the 2nd Respondent made a request for a site visit to parcel of land known as Title Number Kikuyu Township/71 (the suit property) on 3/04/2023 in the presence of all parties’ representatives; that the 2nd Respondent representative showed the Court the exact positioning of its sewer line; that the visit established that the 2nd Respondent’s sewer line did not encroach on the suit property; that therefore the 2nd Respondent’s sewer line has not contributed to the diminution in use and value of the suit property. 3. Only the Petitioner led a Replying Adavit in opposition to the Application the other parties, 1st, 3rd and 4th Respondents did not participate in the Application and so they did not le any responses. 4. The Petitioner opposed the subject Application vide a Replying Adavit sworn by the Petitioner, Eunice Wanjiru Gathithi sworn on 14/01/2025. She averred that the 2nd Respondent is responsible for the tarmac road that has encroached on the suit property. That the site visit report dated 16/08/2023 stated all those present observed that there was need to establish the custodian or person who is responsible for the access road which had encroached on the Petitioner’s suit property and join them as a party to the suit. 5. She further stated that her Advocates had sent several letters to Kenya Urban Roads Authority (KURA) and the oce of the Ombudsman seeking support as exhibited through annexures 1-25. That both KENHA and KURA have conrmed that the road does not fall under their jurisdiction. KURA vide their letter dated 9/08/2024 has conrmed that the road is under jurisdiction of the 2nd Respondent. 6. Further, that the Petition seeks compensation against all the Respondents for rendering the suit property useless and uneconomical. Thus the 2nd Respondent is an integral party to the proceeding and also because they have not adduced any evidence to rebut the conrmation of KURA. 7. On 19/02/2025 when the parties appeared in Court directions were issued for parties to canvass the Application by way of written submissions. 8. Only the Petitioner/Applicant and the 2nd Respondent led their submissions dated 30th April 2025 and 4th April 2025 respectively. I have considered the led submissions in my Ruling. 9. The Petition dated 12/02/2022 shows that the late Gathithi Kabue is the registered proprietor as Lessee of Title Number Kikuyu Township/71, the suit property. The Petitioner is the legal representative of the Estate of the late Gathithi Kabue. 10. That the Government through Gazette Notice No. 11990 issued a directive that it intended to compulsorily acquire the property for the expansion and construction of the Nairobi Southern Bypass. However the Government withdrew the acquisition notice. Despite the withdrawal, an access road to Kikuyu town had been improved and apart of the tarmac encroached the suit property. Infact it emerged that a sewer line had been constructed below the suit property by the County Government which had interfered with the commercial use of the property. 11. Following this encroachment a site visit request was made and granted and the ndings are bottomline that the parties present were not able to establish the custodian or person responsible for the said access road and the Petitioner was asked to enjoin the party responsible to the instant suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18683/eng@2025-07-02 2

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12. Now, whether the 2nd Respondent is liable or not is an issue that can only be determined during the trial. 13. In Zephir Holdings Limited v Mimosa Plantations Limited, Jeremiah Matagaro & Ezekiel Misango Mutisya [2014] eKLR, the Court held: “ A proper party is one who is impleaded in the suit and qualies the thresholds of a Plainti or Defendant under Order 1 rule 1 and 2 respectively, or as a third party or as an interested party and whose presence is necessary or relevant for the determination of the real matter in dispute or to enable the Court eectually and completely adjudicate upon and settle all questions involved in the suit. And the Court has a wide discretion to even order suo moto for a party to be impleaded whose presence may be necessary to enable the Court eectually and completely adjudicate upon and settle all questions involved in the suit. Accordingly, a suit cannot be defeated for mis-joinder or non-joinder of parties.” 14. The foregoing resonates with the Court. In the present case, the presence of the 2nd Respondent seems necessary to enable the Court to eectively adjudicate upon the Petitioner’s claims in her Petition. 15. Besides, if it is established during the hearing of this Petition that the 2nd Respondent in no way caused a liability upon the Petitioner’s suit property, it can easily be compensated by way of costs. 16. In view of the foregoing, I nd the Application dated 13/12/2024 with merit and allow it as prayed. The costs to be in the cause. 17. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 2ND DAY OF JULY 2025 VIA MICROSOFT TEAMS. ………………………… MOGENI J JUDGE In the presence of: Mr. Allen Gichuhi S.C for the Petitioner 1st Respondent – Absent Mr. Mararo for the 2nd Respondent 3rd and 4th Respondents – Absent Mr. Melita – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18683/eng@2025-07-02 3

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