1. The Notice of Motion dated 5th March 2023 was considered by this Court under Certificate of Urgency on 7th March 2025. It was ordered to be served for the inter partes hearing on March 13, 2025.
2. The court issued interim measures to secure the foundation of the suit property and redirected further service.
3. It came for a further inter-partes hearing today. The respondents, albeit served, have not responded yet again.
4. I reckon there is a consent that is being challenged by the intended 3rd defendant/applicant, who avers that the property in issue, the subject of the impugned consent, affects his proprietary rights and that it is the holder of the title LR No. 10173 and LR No. 10174, which properties have never been transferred to any other party whatsoever.
5. Since the consent order is contested and the parties served have failed to respond, it will be in the interest of justice that the intended 2nd Defendant/Applicant be joined in these proceedings, the consent be set aside, and the parties resolve the matter at a hearing on the merits.
6. Consequently, the application dated 5th March 2025 is hereby allowed to the extent that:
i) The consent order entered on 16th February 2023 and extracted on 17th February 2023 is hereby set aside ex debito justitiae.
ii) That leave is hereby granted to the applicant to be joined in these proceedings as the 2nd Defendant to defend and protect its interest in the matter on merit.
iii) The orders issued on 13th March 2025 are to persist to the extent that there shall be no dealings to be registered concerning suit property described as LR No. 28432 Amalgamation, LR No. 10173, and LR 10174 and that the consent dated and entered on 16th February 2023 as endorsed on 17th February 2023 is to be of no effect until this matter is heard and determined on merit.
7. The now 2nd Defendant is to file and serve the intended defense, suit papers, witness statements, and a bundle of documents within 14 days from the date hereof, with corresponding leave for the other parties to respond within 14 days of service.
8. Pre-trials are scheduled for May 14, 2025.
9. Costs in the cause.
Dated, signed, and delivered virtually in Malindi on this 2nd day of April 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Bwire for the Applicant
Ms. Kyalo, for the Respondents
Happy: Court Assistant
2. The court issued interim measures to secure the foundation of the suit property and redirected further service.
3. It came for a further inter-partes hearing today. The respondents, albeit served, have not responded yet again.
4. I reckon there is a consent that is being challenged by the intended 3rd defendant/applicant, who avers that the property in issue, the subject of the impugned consent, affects his proprietary rights and that it is the holder of the title LR No. 10173 and LR No. 10174, which properties have never been transferred to any other party whatsoever.
5. Since the consent order is contested and the parties served have failed to respond, it will be in the interest of justice that the intended 2nd Defendant/Applicant be joined in these proceedings, the consent be set aside, and the parties resolve the matter at a hearing on the merits.
6. Consequently, the application dated 5th March 2025 is hereby allowed to the extent that:
i) The consent order entered on 16th February 2023 and extracted on 17th February 2023 is hereby set aside ex debito justitiae.
ii) That leave is hereby granted to the applicant to be joined in these proceedings as the 2nd Defendant to defend and protect its interest in the matter on merit.
iii) The orders issued on 13th March 2025 are to persist to the extent that there shall be no dealings to be registered concerning suit property described as LR No. 28432 Amalgamation, LR No. 10173, and LR 10174 and that the consent dated and entered on 16th February 2023 as endorsed on 17th February 2023 is to be of no effect until this matter is heard and determined on merit.
7. The now 2nd Defendant is to file and serve the intended defense, suit papers, witness statements, and a bundle of documents within 14 days from the date hereof, with corresponding leave for the other parties to respond within 14 days of service.
8. Pre-trials are scheduled for May 14, 2025.
9. Costs in the cause.
Dated, signed, and delivered virtually in Malindi on this 2nd day of April 2025.
E. K. MAKORI
JUDGE
In the Presence of:
Mr. Bwire for the Applicant
Ms. Kyalo, for the Respondents
Happy: Court Assistant