[2021] KEHC 7858 (KLR)
The court found that the proposed parties to be joined as defendants to the counterclaim were guarantors of the hire purchase facility at the heart of the dispute. Their liability was intricately linked to that of the plaintiff, and the facts giving rise to the claims against all parties arose from the same...
Source-derived case information.
- Citation
- [2021] KEHC 7858 (KLR)
- Parties
- Plaintiff: Arenen Holdings Limited; Defendant: Diamond Trust Bank Kenya Limited; Plaintiff: Diamond Trust Bank of Kenya; Defendant: Arenen Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 439 of 2016
- Procedural Posture
- Civil Case / Ruling on Application to Further Amend Defence and Counterclaim; Joinder of Parties
- Outcome
- application allowed
- Judges
- B Ojoo
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Hire Purchase Disputes, Guarantees and Sureties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Arenen Holdings Limited
Plaintiff
Diamond Trust Bank Kenya Limited
Defendant
Diamond Trust Bank of Kenya
Plaintiff
Arenen Holdings Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Further Amend Defence and Counterclaim; Joinder of Parties
Legal Issues
- 1 Whether the court should allow the bank to further amend its defence and counterclaim to join additional parties as defendants to the counterclaim.
- 2 Whether the joinder of the proposed parties is necessary for the complete and effectual adjudication of the dispute.
- 3 Whether the amendment and joinder would prejudice any party or cause multiplicity of suits.
Ratio Decidendi
The court found that the proposed parties to be joined as defendants to the counterclaim were guarantors of the hire purchase facility at the heart of the dispute. Their liability was intricately linked to that of the plaintiff, and the facts giving rise to the claims against all parties arose from the same transaction. Requiring the bank to litigate separately against the proposed parties would waste judicial resources and risk inconsistent outcomes. The court held that the joinder was necessary to enable it to completely and effectually adjudicate all questions involved in the suit. The application was unopposed and no prejudice would be occasioned to any party by the amendment and...
Court Disposition
application allowed
Orders
- The plaintiff in the counterclaim is granted leave to further amend its Amended Statement of Defence and Counterclaim as prayed.
- The proposed parties, Rohit Mediratta and Vinod Guptan, are joined as the 2nd and 3rd defendants to the counterclaim.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
CIVIL CASE NO. 439 OF 2016
ARENEN HOLDINGS LIMITED ........................................PLAINTIFF
VERSUS
DIAMOND TRUST BANK KENYA LIMITED................DEFENDANT
BY WAY OF COUNTERCLAIM
DIAMOND TRUST BANK OF KENYA................................PLAINTIFF
VERSUS
ARENEN HOLDINGS LIMITED.........................................DEFENDANT
R U L I N G
1. By its Motion on Notice dated 31/8/2020, the plaintiff in the counterclaim (“the Bank”) has sought to further amend its Amended Statement of Defence and Counterclaim in terms of the draft annexed to the supporting affidavit.
2. In seeking to further amend its Amended Defence and Counterclaim, the bank sought to add two other parties as defendants to the counterclaim. These are Rohit Medirattaand Vinod Guptan,as the 2nd and 3rd defendants to the counterclaim, respectively.
3. The application was brought under Order 1 Rule 10, Order 8 Rules 3, 5 and 8and Order 51 of the Civil Procedure Rulesand sections 1A, 1B, 3A and 100 of the Civil Procedure Act. The grounds for the application were set out in the body of the Motion and the supporting affidavit of Tarminder Umeshsworn on 31/8/2020.
4. The grounds were that; this is a claim that revolve around a Hire Purchase facility (“the HP”) of Kshs. 41,200,000/- extended to the plaintiff by the bank for purchase of about 23 vehicles. That although the bank had previously been allowed to amend its defence and counterclaim against the plaintiff it had become necessary to further amend the defence and counterclaim and join those who had guaranteed the facility as the 2nd and 3rd defendant, respectively to the counterclaim.
5. It was contended that the joinder was necessary as it would enable the bank particularise its claim as the same arose from the same set of facts. That it would prevent multiplicity of suits and that it will not prejudice any of the parties.
6. Although the plaintiff had been given sufficient time to respond to the said application, it failed to do so. The application was therefore unopposed.
7. In JMK v. MWM & Another [2015] Eklr,the Court of Appeal held: -
“Order 1 Rule 10(2) of the Civil Procedure Rules empowers the court, at any stage of the proceedings, upon application by either party or suo moto, to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party. Commenting on this provision, the learned authors ofSarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 Pg 887), state that:
‘The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties”.
8. The foregoing are therefore the parameters within which a court considers joinder of parties. The same will therefore be applicable in the present case.
9. It was sworn that the suit emanates from a HP facility of Kshs. 41,200,000/- afforded to the plaintiff by the bank. That the said facility was guaranteed by the proposed 2nd and 3rd defendant to the counterclaim. It is therefore clear that any liability of the proposed parties to the bank is intricately inter-twined with the liability of the plaintiff to the bank.
10. The issues between the plaintiff and the bank is related to the set of facts that relate to the guarantee given by the proposed parties. In this regard, it would be a waste of the precious judicial time to require the bank to litigate separately with the proposed parties, yet the facts forming the subject matter between them and the bank arose from the same transaction with that between the bank and the plaintiff.
11. In this regard, the Court is satisfied that the proposed parties are necessary parties to enable the Court completely and effectually adjudicate this matter. The application is, in the premises, meritorious and is allowed as prayed.
It is so ordered.
DATEDand DELIVEREDat Nairobi this 8th day of April, 2021.
A. MABEYA, FCI Arb
JUDGE