REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT NAIROBI

ELC NO 345 OF 2018

RUTH WAMBUI KIMANI (suing as an Administratix of the Estate of the late

FRANCIS KIMANI MUNGUI ALIAS KIMANI MUNGAI....1^ST PLAINTIFF

JOSEPH MWANGI NJERI..........................................................2^ND PLAINTIFF

-VERSUS -

AGNES KAGURE KARIUKI....................................................1^ST DEFENDANT

THE CHIEF LAND REGISTRAR...........................................2^ND DEFENDANT

FRANCIS KIMANI MUNGAI.................................................3^RD DEFENDANT

KIMEMIAH ENGINEERING CO. LTD................................4^TH DEFENDANT

AND

EDDY PETER NDUNGU KIMEMIAH..........  5^TH INTENDED DEFENDANT

RULING

1. This is the Notice of Motion dated 20^th August 2021 brought under order 1 rule 10, order 51 rule 1 of the Civil Procedure Rules, Section 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap 21, Laws of Kenya, Article 159 (2d) of the Constitution and all the enabling provisions of law.

2. It seeks orders;

a. Spent

b. Spent

c. That this honourable court be and is hereby pleased to enjoin the interested co-plaintiff, herein EDDY PETER NDUNGU KIMEMIA, in this suit as the 5^th Defendant.

d. Costs of this application be provided for.

3. The grounds are on the face of the application and are set out in paragraphs 1 to 12.

4. The application is supported by the affidavit of Joseph Mwangi Njeri, the 2^nd Plaintiff/Applicant sworn on the 20^th May 2021.

5. The application is opposed. There is a replying affidavit sworn by Agnes Kagure the 1^st Defendant/Respondent herein on the 8^th October 2021. She stated that she had authority of the 3^rd Defendant to swear this affidavit.

6. The 2^nd and 4^th Defendants did not file any responses to the application.

7. The Notice of Motion was canvassed by oral submissions on 25^th November 2021.

8. I have considered the notice of motion and the affidavit in support.  I have also considered the replying affidavit and the rival submissions. The issue for determination is whether this application is merited.

9. The 2^nd Plaintiff seeks that Eddy Peter Ndungu Kimemiah be made the 5^th Defendant in this suit.  The grounds advanced are that the 5^th Defendant was the donee of the Power of Attorney that was used unlawfully transfer the suit property.

10. I have gone through the court record. There is a witness statement by Eddy peter Ndungu Kimemiah dated 3^rd September 2019. He states that he is the Director of the 4^th Defendant in this case. He states that he sold the suit property to Kimani Mungai on or about the year 1997.

11. It is not in dispute that the intended 5^th Defendant is a witness in this case by virtue of being the director of the 4^th Defendant.  He is the sole witness I believe he will be able to answer all the questions from the 2^nd Plaintiff’s counsel when the time comes.

12. I find that it is not necessary for him to be made a party in this suit.

13. In conclusion, I find no merit in this application and the same is dismissed. Costs to abide the outcome of the main suit.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBI THIS 24^TH  DAY OF MARCH, 2022

……………………….

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Mirie for the 1^st Plaintiff

Mr. Mariariia for the 2^nd Plaintiff

Ms Shunda for Osundwa for the 1^st and 3^rd Defendants

No appearance for the 2^nd and 4^th Defendants

Steve - Court Assistant