[2009] KEHC 3373 (KLR)
The court declined to exercise its discretion to add the proposed additional defendants as parties to the suit, finding that such joinder would likely prejudice the plaintiff, particularly as any claim against the proposed additional defendants may be statute barred. The court emphasized that the addition of parties...
Source-derived case information.
- Citation
- [2009] KEHC 3373 (KLR)
- Parties
- Plaintiff: Barthold Onno Alyiva Van Ginkel; Defendant: Commercial Bank of Africa Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 186 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Add Defendants
- Outcome
- application refused
- Legal Topics
- Joinder of Parties, Third Party Proceedings, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barthold Onno Alyiva Van Ginkel
Plaintiff
Commercial Bank of Africa Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Add Defendants
Legal Issues
- 1 Whether the proposed additional defendants should be joined as defendants to the suit under Order 1 Rule 10 of the Civil Procedure Rules.
- 2 Whether joining the proposed additional defendants would prejudice the plaintiff due to limitation of actions.
Ratio Decidendi
The court declined to exercise its discretion to add the proposed additional defendants as parties to the suit, finding that such joinder would likely prejudice the plaintiff, particularly as any claim against the proposed additional defendants may be statute barred. The court emphasized that the addition of parties should not result in injustice to existing parties and that the plaintiff, as master of his case, had chosen not to sue the proposed additional defendants. The defendant, having failed to initiate third party proceedings earlier, could still pursue that route if it wished. The application to add the proposed additional defendants as parties was therefore refused, and costs...
Court Disposition
application refused
Orders
- The defendant's application dated 28th January 2009 is refused.
- The plaintiff shall have the costs of the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 186 of 2006
BARTHOLD ONNO ALYIVA VAN GINKEL................................................................PLAINTIFF
VERSUS
COMMERCIAL BANK OF AFRICA LTD.................................................................DEFENDANT
RULING
The defendant in this suit has applied, by Chamber Summons dated 28th January 2009, for one order that Ali Omar Mwachipanga and Dennis Mwakio Maghanga be added as defendants. The application is premised on the main ground that the presence of the said intended additional defendants before the court is necessary in order to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit. The defendant contends that the cheques, the subject matter of this suit were drawn in favour of the proposed additional defendants.
The application is supported by an affidavit sworn by one Jerusha Mwamburi described as a manager of the defendant. The said affidavit elaborates the said ground of the application. In his written submissions which were filed by consent, counsel for the defendant contends that the court has a wide discretion to order the addition of parties to a suit, the object being to avoid multiplicity of suits and expense provided that the questions to be determined arose from the same act or transactions or series of acts or transactions. According to counsel, circumstances exist in this case which require the presence of the proposed additional defendants before the court.
The application is opposed by the plaintiff who contends that the proposed additional defendants should be enjoined as Third Parties. The plaintiff further contends that the action against the proposed additional defendants is time barred and their being joined shall occasion him great prejudice.
The application is expressed to be brought under the provisions of Order 1 Rule 10 (2) and (3) of the Civil Procedure Rules.
I have considered the application, the affidavit in support of the application, the grounds of opposition, the submissions of counsel and the authorities cited. Having done so, I take the following view of the matter. It is plain that the court has a wide discretion under the said rule to order the name of any person who ought to have been joined added either as a plaintiff or defendant or in any other capacity. The plaintiff in his plaint did not in his wisdom join the proposed additional defendants. That was way back on 6th September 2005 which is almost four years ago. In its written statement of defence filed on 13th October 2006, the defendant avers, inter alia, that the plaintiff’s claim if any should be directed against the proposed additional defendants. Notwithstanding that averment, the defendant did not seek to join them as additional parties at the time of delivering its defence. Despite blaming the proposed additional defendants the defendant did not take out Third Party proceedings against them.
The plaintiff contends that he will be greatly prejudiced if the proposed additional parties are added as defendants because his claim if any against them is statute barred. The defendant did not address the plaintiff’s fears. Those fears are not in my view unfounded. Should the proposed additional defendants be joined and successfully plead Limitations; the plaintiff will be saddled with costs against them, an event that shall not arise if the proposed additional defendants are not added.
In the premises, despite the wide discretion given it by the rules, the court cannot determine the status or capacity of any additional party to the prejudice of an existing party. Addition of parties or striking out of parties should only be made without injustice to the parties already before the court. Parties are the best judges of their causes of action. The plaintiff has chosen to proceed against the defendant. The court cannot impose another party against him. If the defendant claims against the proposed additional defendants, it is at liberty to move the court under the provisions of Order 1 Rule 14 (1) of the Civil Procedure Rules or any other relevant provision of the Law. That option is still available to the defendant.
In the premises, the defendant’s application dated 28th January 2009 and filed on 3rd March 2009 is refused. The plaintiff shall have the costs of the application.
Orders accordingly.
DATED AND DELIVERED AT MOMBASA THIS 8TH DAY OF MAY 2009.
F. AZANGALALA
JUDGE
Read in the presence of:-
Odera for the Defendant and Oloo holding brief for Ouma for the Plaintiff.
F. AZANGALALA
JUDGE
8TH MAY 2009