[2008] KEHC 2326 (KLR)
The court held that the plaintiff's application was fatally defective because it was filed in person while the plaintiff was still represented by an advocate, contrary to the Civil Procedure Rules. Furthermore, the plaintiff lacked standing to initiate third party proceedings, as this is a right reserved for...
Source-derived case information.
- Citation
- [2008] KEHC 2326 (KLR)
- Parties
- Plaintiff: Anthony Mwenga Mavua; Defendant: County Council of Kilifi; Defendant: Gurudev Singh; Defendant: Town Council of Kilifi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 303 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application to Join Interested Party
- Outcome
- Application struck out with costs to the defendants.
- Legal Topics
- Joinder of Parties, Defective Affidavit, Representation by Advocate, Third Party Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Mwenga Mavua
Plaintiff
County Council of Kilifi
Defendant
Gurudev Singh
Defendant
Town Council of Kilifi
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Join Interested Party
Legal Issues
- 1 Whether the plaintiff could file an application in person while represented by an advocate.
- 2 Whether the plaintiff could competently take out third party proceedings.
- 3 Whether the supporting affidavit was valid despite not being dated or attested.
Ratio Decidendi
The court held that the plaintiff's application was fatally defective because it was filed in person while the plaintiff was still represented by an advocate, contrary to the Civil Procedure Rules. Furthermore, the plaintiff lacked standing to initiate third party proceedings, as this is a right reserved for defendants. The supporting affidavit was also found to be invalid due to the absence of attestation and date, rendering the application unsupported. Consequently, the summons to join an interested party was struck out as incompetent and defective, with costs awarded to the defendants.
Court Disposition
Application struck out with costs to the defendants.
Orders
- The summons dated 28th January 2008 is struck out with costs to the defendants.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 303 of 1999
ANTHONY MWENGA MAVUA …………..……………….PLAINTIFF
VERSUS
1. COUNTY COUNCIL OF KILIFI
2. GURUDEV SINGH
3. TOWN COUNCIL OF KILIFI……………………RESPONDENTS
R U L I N G
Anthony Mwenga Mavua, the plaintiff herein, took out a summons dated 28th day of January 2008 in which he prayed for an order to have one Twalib Abdalla Mbarak joined to this suit as an interested party. The same is supported by the affidavit sworn by Anthony Mwenga Mavua. The supporting affidavit is not attested nor dated.
The defendants opposed the summons by filing the replying affidavit of Twalib Abdalla Mbarak sworn on 25th March 2008. When the summons came up for interpartes hearing, Mr. Odera, learned advocate for the defendants urged this court to strike out the same on the ground that the applicant filed it in person yet he had an advocate on record. It is not denied that the firm of Stephen Macharia Kimani & Co. Advocates was the plaintiff’s advocate until 25th March 2008 when the plaintiff filed a notice to act in person in place of Odhiambo and Co. Advocate. By the time he filed the summons dated 28. 01. 2008, the plaintiff had a recognized agent by the name of Stephen Macharia Kimani & Co. Advocates. The law did not permit the plaintiff to file the summons in person yet he had an advocate on record. On this account alone the summons dated 28th January 2008 is rendered fatally defective. Even if the application was competent, the plaintiff cannot competently take out third party proceedings. That is the preserve of the defendant. On this score the summons is rendered incompetent.
I have already stated that the supporting affidavit was not dated nor attested. The affidavit is rendered fatally defective and incompetent under order XVIII of the Civil Procedure rules and under the provisions of the Oaths and Statutory declarations Act. The same is ordered struck out. This leaves the summons dated 28. 1.2008 without any support contrary to the requirements of the Civil Procedure rules.
In the end I am convinced the summons dated 28. 1.2008 should be struck out which I hereby order with costs to the defendants.
Dated and delivered at Mombasa this 5th day of June 2008.
J.K. SERGON
J U D G E
In open court in the presence of plaintiff and in the absence of the defendants.