Kelvin Marine Nderi has come to this court with the application dated 7th June 2024 seeking orders that this Honorable Court be pleased to admit the applicant herein as an interested party herein in this matter on account of being the beneficial owner of all that property known as Nakuru Municipality Block 12/290.This Honorable court be pleased to set aside proceedings herein taken in the absence of the Applicant in this matter.
The applicant seeks an order that the plaintiff herein be restrained from interfering with the applicants and use of all that piece of land known as Nakuru Municipality Block 12/290 pending hearing and determination of this suit.
The application is based on the grounds that the Applicant is an interested party in this matter having purchased Nakuru Municipality Block 12/290. The present suit was prosecuted in the absence of the Applicant and the same is pending for Judgment. That if the Judgment is issued without hearing the applicant, he will suffer irreparable loss.
The plaintiff herein has visited the applicant’s premises after the death of the 2nd defendant and started threatening the applicant’s tenants. The supporting affidavit reiterates the grounds of the application.
The application is opposed by the plaintiffs. In the replying affidavit, the 2nd plaintiff states that the application is hopeless, laced with malice and lacks in merit. It has been filed to delay the conclusion of this matter.
This suit was filed vide a plaint dated 22nd May 2018. The defendants in the matter entered appearance and filed their respective pleadings. While the suit herein was pending, the Ist and the 2nd defendants were arraigned and charged in Nakuru Chief Magistrate's Court vide Criminal Case No. 3572 of 2018. They were charged with several offences, among them fraud with regards to land parcel no. Nakuru Municipality Block 12/128.
Vide a judgment delivered on 19.6.2023, the 1st defendant was convicted of the offence of forgery contrary to section 350 of the Penal Code, and forcible detainer contrary to section 91 of the Penal Code. He was subsequently sentenced and he paid a sum of Kshs. 450,000/= as fine. Annexed hereto and marked IS I is a copy of the judgment.
Of importance to note, in the judgment delivered on 19.62023, the Is defendant was convicted of falsifying leases in respect of Nakuru Municipality Block 12/290 and 291 purporting and presenting them to be documents issued by the District Land Registrar, Nakuru.
There is no appeal against the judgment delivered on 19,6.2023. It has not been set aside. In the said Criminal matter, the applicant herein, Mr. Kelvin Marine Nderi, was called as a witness for the accused persons. He testified, under oath, on 26th October 2022 as DW I before the Hon. ESA Nyaloti (CM). His testimony was that he was a tenant of the 1st defendant herein.
The 2nd defendant further states that it was also captured in the judgment delivered on 19th March 2023 that the applicant herein testified in court that he was a tenant in the suit property.
Further, the applicant herein, in the said criminal matter, was made aware of the pendency of this suit. In cross examination by Mr.Ogola, counsel for the victim in the said criminal matter, the applicant was shown the pleadings filed in this matter. The applicant herein did not take any action to bring an application to be made a party in this suit.
Upon the conclusion of the criminal matter, the plaintiffs and the 1st defendant recorded a consent dated 21.7.2023 and filed in court on 24th July 2023. The consent effectively solved the competing interests of the plaintiffs and the 1st defendant herein over the suit property. Annexed hereto and marked IS 3 is a copy of the said consent.
Following the filing of the said consent, the plaintiffs filed an application dated 19.9.2023 to strike out the 1st and 2nd defendants' statement of defence and counterclaim. The application was allowed vide a ruling delivered on 9TH February 2024. Annexed hereto and marked IS 4 is a copy of an order issued on 19th February 2024.
The matter then proceeded for formal proof hearing on 9TH February 2024 and a judgment was reserved for 4th July 2024. It was however, not delivered because the trial judge was on leave.
I have considered the application supporting affidavit, replying affidavit and do find that the applicant has all along been aware of the pendency of the suit and therefore the application is an afterthought. The alleged beneficial interest was obtained when the suit was pending. The applicant’s beneficial interests accrues from an agreement with the 1st defendant and therefore he can pursue a remedy from the 1st defendant. This court finds that the application has no basis and the same is dismissed with costs to the plaintiff.
The applicant seeks an order that the plaintiff herein be restrained from interfering with the applicants and use of all that piece of land known as Nakuru Municipality Block 12/290 pending hearing and determination of this suit.
The application is based on the grounds that the Applicant is an interested party in this matter having purchased Nakuru Municipality Block 12/290. The present suit was prosecuted in the absence of the Applicant and the same is pending for Judgment. That if the Judgment is issued without hearing the applicant, he will suffer irreparable loss.
The plaintiff herein has visited the applicant’s premises after the death of the 2nd defendant and started threatening the applicant’s tenants. The supporting affidavit reiterates the grounds of the application.
The application is opposed by the plaintiffs. In the replying affidavit, the 2nd plaintiff states that the application is hopeless, laced with malice and lacks in merit. It has been filed to delay the conclusion of this matter.
This suit was filed vide a plaint dated 22nd May 2018. The defendants in the matter entered appearance and filed their respective pleadings. While the suit herein was pending, the Ist and the 2nd defendants were arraigned and charged in Nakuru Chief Magistrate's Court vide Criminal Case No. 3572 of 2018. They were charged with several offences, among them fraud with regards to land parcel no. Nakuru Municipality Block 12/128.
Vide a judgment delivered on 19.6.2023, the 1st defendant was convicted of the offence of forgery contrary to section 350 of the Penal Code, and forcible detainer contrary to section 91 of the Penal Code. He was subsequently sentenced and he paid a sum of Kshs. 450,000/= as fine. Annexed hereto and marked IS I is a copy of the judgment.
Of importance to note, in the judgment delivered on 19.62023, the Is defendant was convicted of falsifying leases in respect of Nakuru Municipality Block 12/290 and 291 purporting and presenting them to be documents issued by the District Land Registrar, Nakuru.
There is no appeal against the judgment delivered on 19,6.2023. It has not been set aside. In the said Criminal matter, the applicant herein, Mr. Kelvin Marine Nderi, was called as a witness for the accused persons. He testified, under oath, on 26th October 2022 as DW I before the Hon. ESA Nyaloti (CM). His testimony was that he was a tenant of the 1st defendant herein.
The 2nd defendant further states that it was also captured in the judgment delivered on 19th March 2023 that the applicant herein testified in court that he was a tenant in the suit property.
Further, the applicant herein, in the said criminal matter, was made aware of the pendency of this suit. In cross examination by Mr.Ogola, counsel for the victim in the said criminal matter, the applicant was shown the pleadings filed in this matter. The applicant herein did not take any action to bring an application to be made a party in this suit.
Upon the conclusion of the criminal matter, the plaintiffs and the 1st defendant recorded a consent dated 21.7.2023 and filed in court on 24th July 2023. The consent effectively solved the competing interests of the plaintiffs and the 1st defendant herein over the suit property. Annexed hereto and marked IS 3 is a copy of the said consent.
Following the filing of the said consent, the plaintiffs filed an application dated 19.9.2023 to strike out the 1st and 2nd defendants' statement of defence and counterclaim. The application was allowed vide a ruling delivered on 9TH February 2024. Annexed hereto and marked IS 4 is a copy of an order issued on 19th February 2024.
The matter then proceeded for formal proof hearing on 9TH February 2024 and a judgment was reserved for 4th July 2024. It was however, not delivered because the trial judge was on leave.
I have considered the application supporting affidavit, replying affidavit and do find that the applicant has all along been aware of the pendency of the suit and therefore the application is an afterthought. The alleged beneficial interest was obtained when the suit was pending. The applicant’s beneficial interests accrues from an agreement with the 1st defendant and therefore he can pursue a remedy from the 1st defendant. This court finds that the application has no basis and the same is dismissed with costs to the plaintiff.