1. The 5th defendant/applicant filed the application dated 25th September 2023, seeking to strike out the names of the 2nd to the 5th defendants from this suit on the grounds that the suit is based on adverse possession of land registered in the name of the 1st defendant; that the pleaded claim attaches to the registered proprietor of the suit property and not to 3rd parties like the 2nd to 5th defendants and that the 2nd to 5th defendants have no role to play in the pleaded case.
2. Terming the plaintiff’s cause of action pleaded in the amended Originating Summons (OS) incompatible with the principles underpinning a claim for adverse possession, the 5th defendant/applicant urges this court to strike the names of the 2nd to the 5th defendants from the suit.
3. The application is supported by the affidavit of the 2nd to 5th defendants’ Counsel sworn on 25th September 2023 in which the grounds on the face of the application are reiterated.
4. The application is unopposed.
Analysis and determination
5. I have carefully read and considered the application and the grounds given in support thereof. I have also perused the pleadings filed in this suit and confirmed that the plaintiffs’ claim is based on adverse possession.
6. Although the plaintiffs/respondents have alleged that the 2nd, 3rd and the 4th respondents fraudulently facilitated registration of the suit property in favour of the 1st defendant, it is noted that there are no adverse orders sought against the 2nd to 4th defendants to warrant their participation in the suit.
7. Having carefully reviewed the plaintiff’s pleaded case, I can do no better that adopt the ruling of M.A Odeny J., delivered on 26th March 2019, in an application similar to the application before me. The Judge observed/held: -
“From the onset it is clear that the originating summons is a claim of adverse possession where the plaintiffs want the court to declare that they have been in quiet, open, exclusive and uninterrupted occupation of the suit land for a period of over 12 years.
The pleadings are very clear that the orders sought are against the registered owner of the suit land who is the 1st defendant. In a claim of adverse possession, how will the plaintiff enforce the order against a person who has no proprietary interest in the parcel of land? The body of the pleadings does not have any claim against the 2nd and 3rd Defendant on the issue of adverse possession apart from the allegations of fraud.
Suits should not be filed in vain where orders of the court cannot be enforced against parties. The allegations of fraud against the 2nd and 3rd Defendants and the submissions by counsel that they should come and tell court how they discharged their duties at the Land Committee during land adjudication cannot be canvassed in a claim for adverse possession by suing them. The best that the plaintiff can do is to summon them as witnesses to shed light in the case.
Courts should be slow at striking out pleadings but when the abuse of the court process is glaring then they should not shy away from doing so.
I find that the 2nd and 3rd defendants have been sued wrongly in this Originating Summons for adverse possession as the final orders, if any, cannot be enforced against them. If the plaintiffs wanted to sue them they should have elected to do so and not through a claim for adverse possession. I therefore find that the 2nd and 3rd defendants’ application dated 19th November 2018 has merit and is hereby allowed with costs.”
8. Despite having being guided by the court on the legal propriety of their pleaded case, vis a vis a claim for fraud, the plaintiffs purportedly amended their case by re-introducing the case against the persons they had sued as the 2nd and 3rd defendants in the pleadings strike out by the court and adding more parties. The mere change of form of the parties initially sued as the 2nd and 3rd defendants and addition of other parties, did not change the character of the plaintiff’s pleaded case.
9. That being the case, I agree with the counsel for the 5th defendant that the plaintiffs’ case discloses no reasonable cause of action against the 2nd to 5th defendants. Consequently, I strike out the 2nd to 5th defendants from the suit.
10. The upshot of the foregoing is that the application dated 25th September 2023 has merit. Consequently, I allow it in terms of prayer (b).
11. Orders accordingly.
Dated, signed and delivered at Kabarnet this 19th day of June, 2024.
Ruling delivered virtually in the presence of;-
Ms Chesaro for the Plaintiffs
Mr Bundotich for the 1st Defendant
N/A for the 2nd to 5th Defendants
Court Assistant Sitienei