1.This ruling is on the Notice of Motion dated November 1, 2022. The motion which is by the 8th defendant is brought under sections 1A, 1B and 3A of the Civil Procedure Act, orders 1 rule 10, 2 rule 15 and 51 rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following orders.i.Striking out of this suit against the 8th defendant.ii.The costs of this application be borne by the plaintiff and the 14th defendant.
2.The Motion is premised on six (6) grounds, a Supporting Affidavit by Charles Theuri Maina dated October 1, 2022 and one annexure. The gist of the above material is as follows.Firstly, the 8th defendant is not the owner of land parcels number Kajiado/Mailua/1918, 1919, 2071 and 3041 as it exchanged them with LR Kajiado/Mailua/4762, 4766 and 7439 as per the agreement dated May 2, 2018 between it and the 14th defendant.Secondly, unless the 8th defendant is struck off the suit and the court eventually making an order affecting it in relation to the said parcels, such an order cannot be enforced against it.Finally, the 8th defendant is not a necessary party and allowing this motion will allow the court determine the suit on merit and between the necessary parties.
3.Though the motion is served upon the respondents, it was not opposed by them in any manner.
4.I have carefully considered the motion in its entirety and I find that it has no merit for the following reasons.Firstly, it is immaterial that the applicant is not the current owner of the four parcels. As long as it owned them, that ownership was unlawful for the reasons given at pages 12 and 13 of the judgment dated October 6, 2022. Page 12 paragraph 4 reads.
6.Secondly, it is not true to say that the decree in this suit cannot be enforced against the 8th defendant. Prayer (c) of the amended plaint dated August 14, 2019 was for compensation of the plaintiff in the sum of Kshs 122,220, 000/- which was the market value of the suit land without developments thereon as at October 12, 2017. This money decree can certainly be enforced against the 8th defendant.
7.Finally, the 8th defendant is a necessary party in the suit as it was a beneficiary of the land that was unlawfully acquired from the plaintiff. It also goes without saying that the suit has already been decided and liability apportioned. It cannot therefore be correct to say that striking out the 8th defendant will allow the court determine the suit on merit and between the necessary parties. The suit has already been decided and the 8th defendant is a necessary party.For the foregoing reasons, the Motion dated November 1, 2022 is dismissed with costs.It is so ordered.