|Civil Application 132 of 2010
|Kishor Kumar Dhanji Varsani v Punny Barbir Kaur
|25 Mar 2011
|Court of Appeal at Nakuru
|Philip Kiptoo Tunoi, Daniel Kennedy Sultani Aganyanya, Joseph Gregory Nyamu
|Kishor Kumar Dhanji Varsani v Punny Barbir Kaur  eKLR
|(An application for stay of further proceedings from a ruling in the High Court of Kenya at Nakuru (Ouko, J) dated 29th April, 2010 in H.C.C.C.NO.247 OF 2002)
|History Docket No:
|H.C.C.C.NO.247 OF 2002
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
KISHOR KUMAR DHANJI VARSANI .................................................................................APPLICANT
RULING OF THE COURT
What triggered the filing of the application is a ruling in H.C.C.C. 247 of2002 by the superior court (Ouko, J.) in which the superior court reinstated the suit which had abated on 4th August 2006 one year after the death of the Plaintiff Amolak Singh on 4th August 2005. The orders of reinstatement and revival were made upon the application of the widow of the Amolak Singh, Mrs Puny Balbir Kaur made pursuant to Order 23 of the Civil Procedure Rules. The applicant was aggrieved by the said order for the reasons that the superior court had by virtue of the ruling given a greenlight for litigation over an unregistered and unexpressed lease given on a non-existent subject matter; that the ruling had opened a can of worms whose effect would be unprocedural; that the court has allowed litigation to proceed over a non existent subject matter without regard to due process and the constitutional protection of the right to property; that the interest of a registered owner of property overrides that of a lessee with an unregistered interest; that the court had put into question land titles which were issued after the suit had abated without following the due process; that the court transposed an inter-parte contract to third parties; that if proceedings proceed in this matter, the plaintiff may claim a lease over a property belonging to the 2nd defendant leading to substantive loss and undesirable results if the Court of Appeal over tunes the ruling and finally that the constitutional court has since held that the intended plaintiffs have no locus standi over what was, the company property.
In response to the application the 1st respondent counsel Mr P.G. Ng’ang’a submitted that Mrs Kaur became a party as the legal representative of the deceased, on 29th April 2010 when the Court also allowed the joinder of 2nd, 3rd and 4th plaintiffs; that it was not true as alleged by the applicant that H.C.C.C. No.247 of 2002 had abated as there were other plaintiffs in the matter apart from the deceased; that parcel Bahati/Kabatini/Block 1/2806 is a portion of the former Engashara Farm in Bahati Division which was 7,118 acres in area owned by Ndeffo Ltd; that at the time of his death the deceased was running a family quarry business on the land in question; that until 1967 when the farm on which the quarry is was bought by Ndeffo Ltd, the same was owned by a British farmer who leased it to the deceased’s family between 1945 and 1967; that between 1967 and 4th August 2005 the deceased occupied the quarry by virtue of leases granted to him by Ndeffo Limited over Bahati/Kabatini Block/2806 and that the lease was granted on 22nd October 1988 by Ndeffo Ltd for twenty (20) years and that the lease had since been renewed for a further term of 20 years pursuant to the renewal clause for a consideration in the sum of kshs.5 million; that in 2002 some directors of Ndeffo and the applicant entered into some dubious arrangement with a view of taking the quarry away from the deceased hence the filing of H.C.C.C. of 2002 by my late Mr Kaur against the Ndeffo Ltd and the applicant (Amolak Singh vs Ndeffo Ltd & Kishor Kumar Dhanji Varsani); that in 2004 the deceased was joined by three other plaintiffs namely Kenneth Ndungu, Onesmus Matheri, Ndegwa and Daniel Njoroge; that on 17th February 2003 the superior court ordered that the status quo in respect of the deceased’s quarry and that of the applicant be maintained, but the applicant had since procured a certificate of title in respect of 43 acres and also started a subdivision purportedly consolidated with Bahati/Kabati Block 1/2806 into parcels which was given sub-division number Bahati/Kabatini/Block 1/1058; that while H.C.C.C.NO.247 of 2002 was pending the applicant filed two other suits Nak Chief Magistrate Court Civil Suit No. 587 of 2008 Kishor Kamar Dhanji Varsani v Amolak Singh Dandher and Nak H.C.C.C. No.170 of 2009 Kisher Kumar Dhanji Varsani vs Ndeffo Ltd & 5 others and finally that an application for consolidation of various suit is scheduled for hearing on 12th October 2011 (including H.C.C.C. 247/2002 and H.C.C.C. 170 of 2009 and in the circumstances no prejudice would be suffered by the applicant if the court were to refuse to give an order for stay because the final hearing will involve the applicant and all other directly affected parties.
In addition, we think that as a Court in order to further the overriding objective pursuant to sections 3A and 3B of the Appellate Jurisdiction Act, we consider that we have a duty to discourage the hearing of interlocutory appeals in situations where a procedure of consolidation could be used to achieve finality in all suits pending which touch on the subject matter of the intended appeal.
In the result, the application is dismissed. Costs to abide the outcome of the appeal.
DATED and delivered at Nairobi this 25th day of March 2011.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
I certify that this is a true copy of the original.