Joseph Wanyama Kibira v Board of Management St. Teresa Secondary School & another [2021] KEELC 4386 (KLR)

Facts

The plaintiff, Joseph Wanyama Kibira, sought orders against the defendants, the Board of Management of St. Teresa Secondary School and Hassan Ndamwe Wakoli, regarding the reinstatement of the original common boundary between their respective lands, and the prohibition of subdivision of the plaintiff's land into 126 plots.

Issues

1. Was it proper to join the 2nd defendant in his personal capacity?
2. Does the plaintiff possess locus standi to maintain the suit?
3. Did the defendants trespass on the plaintiff's land?
4. Should a mandatory injunction issue?
5. Should a permanent injunction issue?
6. Is the plaintiff entitled to general damages?
7. Who should bear the costs of the suit?

Reasoning

The plaintiff's suit against the 2nd defendant in his personal capacity is not supported by evidence. The 2nd defendant's presence in the activities leading to the filing of the suit is not in doubt, and the provisions of the Civil Procedure Act and rules do not allow the suit to be defeated solely on account of non-joinder or misjoinder of parties.

Outcome

The suit against the 2nd defendant in his personal capacity is summarily struck out. The 2nd defendant's joinder in his private capacity will be preserved with the attendant consequence that he merits costs of the suit against the plaintiff.