[2017] KEHC 7751 (KLR)
The court held that Elizabeth Atieno Ayoo was not properly enjoined as an Interested Party because neither party applied for her joinder, nor did the court add her on its own motion. Order 1 Rule 10(2) of the Civil Procedure Rules requires that a party may only be added to proceedings upon application by a party or...
Source-derived case information.
- Citation
- [2017] KEHC 7751 (KLR)
- Parties
- Plaintiff: Bedrock Holdings Limited; Defendant: Maseno University; Defendant: Riley Falcon Security Services Ltd; Defendant: Public Procurement Oversight Authority; Interested Party: Elizabeth Atieno Ayoo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 25 of 2014
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- Application allowed in part; documents filed by the Interested Party expunged; other prayers declined.
- Judges
- EM Muchoki
- Legal Topics
- Joinder of Parties, Interested Party Procedure, Court Inherent Jurisdiction
- 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
Bedrock Holdings Limited
Plaintiff
Maseno University
Defendant
Riley Falcon Security Services Ltd
Defendant
Public Procurement Oversight Authority
Defendant
Elizabeth Atieno Ayoo
Interested Party
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether Elizabeth Atieno Ayoo was properly enjoined as an Interested Party in the suit.
- 2 Whether documents filed by or on behalf of the Interested Party should be expunged from the record.
- 3 Whether Mr. Gachuba Advocate should be disqualified from acting for the Interested Party.
Ratio Decidendi
The court held that Elizabeth Atieno Ayoo was not properly enjoined as an Interested Party because neither party applied for her joinder, nor did the court add her on its own motion. Order 1 Rule 10(2) of the Civil Procedure Rules requires that a party may only be added to proceedings upon application by a party or by the court if their presence is necessary for the effective adjudication of the matter. The court further noted that even in the absence of explicit procedural rules, the inherent jurisdiction of the court could be invoked, but this was not done. Consequently, all documents filed by or on behalf of the Interested Party were not properly before the court and had to be...
Court Disposition
Application allowed in part; documents filed by the Interested Party expunged; other prayers declined.
Orders
- The Notice of Appointment, Grounds of Opposition, and Replying Affidavit filed by or on behalf of Elizabeth Atieno Ayoo are expunged from the record.
- The prayer to disqualify Mr. Gachuba Advocate from acting for the Interested Party is declined as moot.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL CASE NO. 25 OF 2014
BEDROCK HOLDINGS LIMITED...............................................................PLAINTIFF/APPLICANT
VERSUS
MASENO UNIVERSITY...............................................................1ST DEFENDANT/RESPONDENT
RILEY FALCON SECURITY SERVICES LTD............................2ND DEFENDANT/RESPONDENT
PUBLIC PROCUREMENT OVERSIGHT AUTHORITY ...........3RD DEFENDANT/RESPONDENT
ELIZABETH ATIENO AYOO.................................................INTERESTED PARTY/RESPONDENT
RULING
On 14th December 2016 the firm of Onyoni Opini & Company Advocates who are on record for the 2nd Defendant in this case filed a Notice of Appointment of Advocates purporting to act for one Elizabeth Ayoo who they described as an Interested Party. Together with that Notice of Appointment the firm filed Grounds of Objection and a replying affidavit sworn by the said Elizabeth Atieno Ayoo in opposition to the Plaintiff's Notice of Motion dated 17th July 2014.
By a Notice of Motion dated 17th January 2017 Counsel for the Plaintiff seeks to not only expunge those documents but also to disqualify Mr. Gachuba Advocate from acting for the Interested Party in this case and also to find that the said “Interested Party” has breached the Public Ethics Act and Leadership & Integrity Act and to have her investigated by the Ethics & Anti-corruption Commission.
Having heard the arguments by the Advocates I find that indeed the so called Interested Party was not properly enjoined to this case. Whereas it may be argued that the Civil Procedure Rules do not expressly provide for a procedure in regard to Interested Parties the same way it does for Third Parties it cannot be the case that a party can enjoin itself to a case or proceedings without leave. Parties must seek leave and indeed Order 1 Rule 10(2) of the Civil Procedure Rules provides that a Court can upon application by either party or suo moto add the name of any person “whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit”. The Court must therefore be satisfied that such a person is a necessary party before she is added as a party. In any event even where the Rules do not provide for the procedure, parties can invoke the inherent jurisdiction of the Court under Sections 3 and 3A of the Civil Procedure Act a fact, I believe, is well known to Counsel for the said Elizabeth Ayoo. As she was not added upon an application by either party or by the Court on its own motion it follows that she is not a party to this case and the Notice of Appointment, the Grounds of Opposition and Replying Affidavit are not properly before Court and must be expunged. As for the prayer to disqualify Mr. Gachuba Advocate from acting for her I can only say that as he can only do so if she is a party and this Court having found she is not, the prayer is overtaken by events. As for the prayer that she be found guilty of breaching the two Acts cited above there is a procedure for doing so which is outside the scope of this application and the orders cannot therefore issue. Costs be in the cause. It is so ordered.
Signed, dated and delivered at Kisumu this 16th day of February 2017
E. N. MAINA
JUDGE
In the presence of:-
N/A for the Plaintiff/Applicant
N/A for the Defendants/Respondents
Mr. Gachuba for Interested Party
C/A: Serah Sidera