[2015] KEHC 5209 (KLR)
The court found that the plaint did not allege any wrongdoing on the part of the 2nd defendant, the Attorney General. The only allegations of damage related to the actions of the 1st defendant, Tana Water Service Board, which is a body corporate capable of being sued in its own name. Since no cause of action was...
Source-derived case information.
- Citation
- [2015] KEHC 5209 (KLR)
- Parties
- Plaintiff: Augustine Njeru; Defendant: Tana Water Service Board; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 8 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Suit Against 2nd Defendant
- Outcome
- Suit against the 2nd defendant dismissed with costs.
- Legal Topics
- Striking Out of Suit, Joinder of Parties, Cause of Action, Corporate Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Njeru
Plaintiff
Tana Water Service Board
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Suit Against 2nd Defendant
Legal Issues
- 1 Whether the plaint discloses a cause of action against the 2nd defendant.
- 2 Whether the 2nd defendant was properly joined as a party to the suit.
Ratio Decidendi
The court found that the plaint did not allege any wrongdoing on the part of the 2nd defendant, the Attorney General. The only allegations of damage related to the actions of the 1st defendant, Tana Water Service Board, which is a body corporate capable of being sued in its own name. Since no cause of action was disclosed against the 2nd defendant, he was wrongly joined as a party to the suit. Consequently, the suit against the 2nd defendant was dismissed with costs.
Court Disposition
Suit against the 2nd defendant dismissed with costs.
Orders
- The suit against the 2nd defendant is dismissed.
- Costs of the application and the entire suit to be paid to the 2nd defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
E.L.C. NO 8 OF 2014
AUGUSTINE NJERU.................................................................PLAINTIFF
VERSUS
TANA WATER SERVICE BOARD...................................1st DEFENDANT
THE ATTORNEY GENERAL...........................................2nd DEFENDANT
RULING
1. The 2nd defendant by his notice of motion dated 30th September, 2014 has applied to this court to strike out the plaintiff's case against him. The reason for this is that there is no cause of action disclosed against him. Additionally, he has prayed that he be awarded the costs of this motion and that of the entire suit. The application is supported by an affidavit of sworn to by Ms Rose Nyawira.
2. The application is not opposed. All there is in the file is the 1st defendant's statement of defence dated 13th October, 2013.
3. According to the supporting affidavit, the plaint does not disclose a cause of action against the 2nd defendant. And for that reason, it is said to be scandalous, frivolous and vexatious and a abuse of the court process. The alleged damage on the 1st defendant's suit land reference number Kyeni/Mufu/5535 is said to have been caused by the 1st defendant's actions.
4. It is alleged in the plaint that a water pipe that was installed by the defendant burst and extensively destroyed and eroded 0. 5 hectares of the plaintiff's parcel of land. As a result, there was erosion of the suit land and damage to his nappier grass, bananas, arrow roots and other crops.
5. Furthermore, the 2nd defendant in the supporting affidavit has stated that the 1st defendant is a body corporate with power to sue and be sued in its own name. Additionally, the 2nd defendant asserts that no wrong doing has been alleged against the 2nd defendant in the plaint. And for that reason, the 2nd defendant plays that the suit be struck out and costs be awarded to him.
6. I have considered the plaint together with the defence and the notice of motion. I find that the 1st defendant is a body corporate. I find that it may be sued in its own name. It also has the capacity to sue in its own name.
7. More importantly, the plaint does not allege any wrong doing on the part of the 2nd defendant. In these circumstances, I find that the 2nd defendant was wrongly joined as a party to this suit.
8. In the light of the foregoing reasons, I agree with counsel for the 2nd defendant that the plaint does not disclose any cause of action against the second defendant.
9. For these reasons, the suit against the 2nd defendant is hereby dismissed with costs of this application and the entire suit to be paid to the second defendant.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 20thday of APRIL2015.
In the presence of Ms Janet Kungu for the second defendant and in the absence of both the plaintiff and the first defendant
Court clerk Mr Muriithi
J.M. BWONWONGA
JUDGE