[2011] KEHC 2822 (KLR)
The court found that there were two distinct contracts: one between the applicant and the plaintiff, and another between the plaintiff and the defendant. There was no privity of contract between the applicant and the defendant. As such, the applicant could not be joined as a party to the current suit. The proper...
Source-derived case information.
- Citation
- [2011] KEHC 2822 (KLR)
- Parties
- Plaintiff: Alex Otuke Ondimu; Defendant: Yuasa International Limited; Applicant: __MISSING__
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 249 of 2010
- Procedural Posture
- Civil Case / Ruling on Application for Joinder of Parties
- Outcome
- application dismissed
- Judges
- MJA Emukule
- Legal Topics
- Joinder of Parties, Privity of Contract, Separate Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Otuke Ondimu
Plaintiff
Yuasa International Limited
Defendant
__MISSING__
Applicant
Procedural Posture
Civil Case / Ruling on Application for Joinder of Parties
Legal Issues
- 1 Whether the applicant should be joined as a party to the suit.
- 2 Whether there is privity of contract between the defendant and the applicant.
Ratio Decidendi
The court found that there were two distinct contracts: one between the applicant and the plaintiff, and another between the plaintiff and the defendant. There was no privity of contract between the applicant and the defendant. As such, the applicant could not be joined as a party to the current suit. The proper course for the applicant would be to file a separate suit to enforce their contract with the plaintiff, and possibly include the defendant as a precautionary measure if repossession of motor vehicles became an issue. The application for joinder was therefore dismissed.
Court Disposition
application dismissed
Orders
- The applicant's application dated 29th December, 2010 is dismissed.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 249 OF 2010
ALEX OTUKE ONDIMU…………………...……………………………………………..PLAINTIFF
VERSUS
YUASA INTERNATIONAL LIMITED………….......………….…...………………….DEFENDANT
RULING
I have examined the application dated 29th December, 2010 and the Supporting Affidavits and annextures thereto. I have also considered the Plaintiff/Respondent's Replying Affidavits and annextures thereto.
Having heard Mr. Karuku for the Applicant and Mr. Konosi for the Plaintiff/Respondent and whereas I agree with the principles of joinder of parties as stated by Warsame J. in the case of Kamau vs. Makomboki Tea Factory Ltd [2008] E.A. 154. I am of the view that this is not a proper case for jointer of parties. The principal reason is this - there are two separate contracts between the Applicant and the Plaintiff in this suit. There is also a separate contract between the Plaintiff and Defendant. There is no privity of contract between the defendant and the Applicant.
The Applicant's contract is with the Plaintiff and to enforce it, the Applicant needs to file separate suit against the Plaintiffs and perhaps the Defendant as precautionary measure should the Defendant insist on repossessing any of the motor vehicles bought by the Applicant from the plaintiff.
For those reasons I will dismiss the Applicant's application dated 29th December, 2010. Each party to bear its own costs.
Dated and signed at Nakuru this 17th day of February, 2011
M. J. ANYARA EMUKULE
JUDGE
Mention on 3rd March 2011 for further directions. Interim orders to remain in force.
M. J. ANYARA EMUKULE
JUDGE