Case Metadata |
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Case Number: | Civil Application 1531 of 2005 (O.S.) |
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Parties: | Abdul Waheed Sheikih, Abdul Hameed Sheikh as Trustees of the Sheikh Fazal Ilachi Noordin Charitable Trust & Ex-Parte Umoja Self Help Group v Commissioner of Lands, Minister for Lands & Housing, Minister for Finance & Registrar of Titles |
Date Delivered: | 06 Jun 2013 |
Case Class: | Civil |
Court: | High Court at Nairobi (Milimani Law Courts) |
Case Action: | Ruling |
Judge(s): | Isaac Lenaola |
Citation: | Abdul Waheed Sheikih & 2 others v Commissioner of Lands & 3 others [2013] eKLR |
Advocates: | Mr. Wamoba for Respondents Mr. Abidha for Plaintiff |
Court Division: | Civil |
County: | Nairobi |
Advocates: | Mr. Wamoba for Respondents Mr. Abidha for Plaintiff |
History Advocates: | One party or some parties represented |
Case Outcome: | Application dismissed |
Disclaimer: | 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 |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPLICATION NO.1531 OF 2005 (O.S.)
BETWEEN
ABDUL WAHEED SHEIKIH AND ABDUL HAMEED SHEIKH AS TRUSTEES OF THE SHEIKH
FAZAL ILACHI NOORDIN CHARITABLE TRUST….................DEFENDANTS/RESPONDENTS
VERSUS
COMMISSIONER OF LANDS………….........................................................…...1ST PLAINTIFF
THE MINISTER FOR LANDS & HOUSING……….....................................……..2ND PLAINTIFF
THE MINISTER FOR FINANCE..…….…...........................................................…3RD PLAINTIFF
REGISTRAR OF TITLES…….....….......................................................................4TH PLAINTIFF
AND
UMOJA SELF HELP GROUP......................................................................................APPLICANT
RULING
Firstly, it is the law that for a party to be enjoined in existing legal proceedings, that party must demonstrate that its presence is necessary “in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit”.
In the present Application, the claim made by the Applicants is that they are entitled to the suit land by adverse possession but sadly the present proceedings are of a constitutional nature and the litigation rotates around the doctrine of legitimate expectation. The issue was settled in favour of the Plaintiffs and to re-open the contest would serve no lawful purpose, however legitimate the claim by the Applicants may be. The position would remain the same even if the Applicants were to raise the application of that doctrine to their circumstances because the facts would be totally different.
“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter... For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the Plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person”
“Under Order 1 Rule (2) of the Civil Procedure Rules, where it appears to the Court that any joinder of parties may embarrass or delay the trial of the suit, the court may on its own motion or on application of any party order separate trials or make such other order as may be expedient. Order 1 of the Civil Procedure Rules generally applies to parties to a suit who in normal circumstances are described as plaintiffs and the defendants. However, it is the courts view that the provision would apply, mutatis mutandi, to any other party who may be joined to a suit as interested party to the matters under consideration ...The need to maintain the interested parties in this suit ... would only serve to delay speedy disposal of the suit. If anything the interested parties are at this point busy bodies merely applying “gate-crushing” tactics under the pretext of having interest in the sale agreement subject of the suit... As a general rule, a contract affects only the parties to it and cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it... the affairs of the interested parties club ought not be introduced and sucked in a straightforward contractual transaction. It is only fair that the interested parties be “evicted” from this suit by setting aside the ex parte order granted in their favour.”
“12. That it has therefore come to us as a surprise that a judgment has been entered in this case affecting the land and place that we have always known as home.
13. That I believe that the Honourable Court was not notified that there were squatters living on the said since the colonial days and who depend wholly on the said land.
14. That I believe that had this Court heard us in opposition to the Judicial Review application it would not have made the orders of 18th May 2012
15. That as soon as we became aware of the judgment herein we filed an application dated 11th July 2012 in ELC No.102 of 2008 to preserve the suit land which application is yet to be determined.”
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 6TH DAY OF JUNE, 2013
ISAAC LENAOLA
JUDGE
In the presence of:
Florence – court clerk
Mr. Wamoba for Respondents
Mr. Abidha for Plaintiff
No appearance for Applicant
Order
Ruling duly read.
ISAAC LENAOLA
JUDGE