give notice of the institution of the suit to all parties interested in the suit as prospective plaintiffs
by way of public advertisement or in such other way that the court may direct. The other
application was under order 39 rules 1and 3 rules of the Civil Procedure Rules for order c. above
cited.
The summary of the plaintiff’s case is contained in the certificate of Urgency that was annexed to
the application for an order of injunction. It reads as follows:
(i) The plaintiff’s case is that the defendants have been allocated the suit properties illegally
and they are in the process of fencing the same with the view of developing the same.
(ii) The plaintiffs’ claim is that the suit properties are public utility land and that therefore
any allocation thereof is null and void AB-INITIO.
(iii) If the defendants develop the properties permanently the basis of the plaintiff’s case
would be destroyed. In that case both the suit and the application would be rendered
nugatory.
I came to file a representative action as granted by Aluoch J. on 16th December 1996 and there are
interim injunction orders in place issued by this court on 18th December 1996.
There is an affidavit in support of the application for injunction sworn by one Paul Nderitu
Ndungu on 11 th December 1996 paragraphs 22,28 and 30 of the said affidavit are instructive and I
deem it necessary to set them out in full herein below.
They read as follows:
- That I verily believe that the land reserved for the police station and the water reservoir is
not government land strictly speaking which the government can allocate to individuals at
will. I verily believe the said land having been reserved for specific purposes can only be
utilized for those purposes. - That I verily believe that neither the commissioner of lands nor any other person has a
right to alienate the said reserved pieces of land or any part thereof for any use other than
that for which it has been reserved and that therefore any such alienation of public land is
void AB INITIO. - That I am advised by council on record that if the actions of the commissioner of lands in
alienating parts of public land in this specific case are void AB INITIO the defendants
cannot claim to have good titles to the pieces of land given to them illegally and thereof
unlawfully. - That I verily believe that the allocations of the said pieces of land to the defendants or to
any person or persons to whom the defendants may respectively have derived title is
therefore null and void.
Both defendants have filed grounds of objection and replying affidavits. The plaintiffs are said to
have no locus standi to institute the suit. There is no cause of action, they have not satisfied the
principles laid down in the Giella case; no order can be made against a party who is not a party to
the proceedings and that there is misjoinder of actions.
One Mandip Singh Amrit has sworn an affidavit in his capacity as a Director of the first
defendant Company. He states that the first defendant is the legal owner of Nairobi/Block Nos
90/575 to 580 all-inclusive. He has annexed copies of the relevant documents relied upon. He
further avers that the first defendant intends to develop residential houses to the tune of over
sh.60 million. He concludes by saying that if the injunction is granted the first defendant will