Lady Justice Pauline Nyamweya has agreed to the plea by four businessmen to emend the case and name Mr Moi as a defendant.
The High Court said it has “a wide discretion to grant the request for a just, expeditious, proportionate and affordable resolution of the civil dispute”.
Lady Justice Nyamweya directed that the case filed in 2004 starts afresh and bring on board the former head of State, who has been linked to the sale of the disputed land measuring 16 acres in Embakasi, Nairobi, to a private firm at the centre of the row in 1996.
The four businessmen Mohammed Koriow Nur, Simon Kiprono Laboso, Macdonald Lijoodi Maraka and Noor Mohammed Hassan were directed to amend their case within 15 days from Tuesday and name Mr Moi as a defendant alongside three others.
The former President was given 30 days to respond to the allegations against him. He will be required to file title deed of the property and evidence to show that Tulip Properties bought the land him.
The four are asking the court to kick Tulip Properties Limited out of the land, which the businessmen claim they legally acquired.
They state that they had valid title documents to the land issued to them by the Commissioner of Lands in 1998.
The businessmen accuse Tulip of irregularly acquiring the land and termed its titles fake. But the company says it bought the property from Mr Moi in 1996 for Sh25 million.
The four plaintiffs are asking the court to compel the former head of State to produce title documents to the suit land and a copy of the bankers cheque he received from Tulip Properties for the purchase of the land.
The four told the judge that under law “Mr Moi was not entitled to own land since he held in trust all government land on behalf of the public”.
Lady Justice Nyamweya said she had read and carefully considered the pleadings and submissions by the four traders through advocates Ronald Owang and William Arusei and arrived at a finding that the court could exercise its discretion in favour of the applicants.
She ruled that under the provisions of Order 8 Rule 3 of the Civil Procedure Rules the court has been granted wide discretion to grant the prayers sought at any stage of the proceedings “notwithstanding that the effect may be to add a new party”.
The judge said that witnesses had testified in the case and Mr Moi did not cross-examine them and added that if it starts afresh he would be afforded an opportunity to do so.
She asked the four to pay for costs of proceedings set for October 19.
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