[2014] KEHC 4965 (KLR)
The court held that defendants cannot be joined as plaintiffs unless the plaintiff withdraws the claim against them, which had not occurred in this case. For applicants not sued by the plaintiff, since the plaintiff objected to their joinder and no relationship with the plaintiff was disclosed, the appropriate...
Source-derived case information.
- Citation
- [2014] KEHC 4965 (KLR)
- Parties
- Plaintiff: Benjamin Wafula Barasa; Applicant: Dickson Tom Wanjala; Applicant: David Nyukuri; Applicant: Francis Wanjala; Applicant: Patrick Wafula Wanjala; Applicant: Ali Waziri Bakari; Defendant: Public Health Officer & 23 Others
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 13 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder as Co Plaintiffs
- Outcome
- application dismissed
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Counter Claims, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Wafula Barasa
Plaintiff
Dickson Tom Wanjala
Applicant
David Nyukuri
Applicant
Francis Wanjala
Applicant
Patrick Wafula Wanjala
Applicant
Ali Waziri Bakari
Applicant
Public Health Officer & 23 Others
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder as Co Plaintiffs
Legal Issues
- 1 Whether the applicants, some of whom are current defendants, can be enjoined as co-plaintiffs in the suit.
- 2 Whether applicants not sued by the plaintiff can be joined as co-plaintiffs against the plaintiff's wishes.
- 3 Whether the proper procedure for the applicants is to file a counter-claim or a separate suit.
Ratio Decidendi
The court held that defendants cannot be joined as plaintiffs unless the plaintiff withdraws the claim against them, which had not occurred in this case. For applicants not sued by the plaintiff, since the plaintiff objected to their joinder and no relationship with the plaintiff was disclosed, the appropriate course was for them to file a separate suit. The court found the application for joinder as co-plaintiffs to be without merit and procedurally improper, emphasizing that the Civil Procedure Rules do not permit such joinder under the present circumstances. The applicants' remedy lies in amending their defence to file a counter-claim or instituting a separate suit, not in being joined...
Court Disposition
application dismissed
Orders
- The application to be enjoined as co-plaintiffs is disallowed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT AND LAND CASE NO. 13 OF 2014
[FORMERLY HCC NO. 110 OF 2012[
BENJAMIN WAFULA BARASA ……………….......….… PLAINTIFF
VERSUS
PUBLIC HEALTH OFFICER & 23 OTHERS................. DEFENDANTS
RULING
1. The Applicants Dickson Tom Wanjala, David Nyukuri, Francis Wanjala, Patrick Wafula Wanjala and Ali Waziri Bakari moved this court under Order 1 rule 1,6,8, (1-3) of the Civil Procedure Rules seeking prayers to be enjoined as co-Plaintiffs with Benjamin Wafula Barasa. Francis W. Wakalikha,Patrick and Ali Waziri are sued as Defendants no. 8, 10 and 23 respectively.
2. The Applicants put forward 12 grounds why the orders sought should be granted. One of the grounds is that they have a similar claim as the complainant. At paragraph (j), it states that the plot nos. Ndivisi/Muchi/4227, 4229, 4230,4232, 4235, 4239 and 4247 must be returned to the Applicants on behalf of their deceased fathers. The application is also supported by the affidavit sworn by all the Applicants.
3. The application is opposed by the Plaintiff on the basis that the Applicants were giving false information. He wanted the Applicants (Francis & David) sued as Defendants to remain so. The Plaintiff avers that if the Applicantshave any claims, they should file independent suits. He submitted further that the first Applicant lacked capacity to address court.
4. Mr. Ateya on his part submitted that he left it to the Applicants to decide which side of the suit they want to be. For the record, Mr. Ateya represents part of the Defendants who will not be affected by the orders arising from this application.
5. To begin with, the 3 Applicants were sued as 8th, 10th and 23rd Defendants can only be joined as Plaintiffs if the current Plaintiff withdrew the claim he made against them. No such withdrawal has been made. It follows therefore that there-course open to them is to apply to amend their defence and file a counter-claim to bring forth their claims against any ofthe parties in this suit.
6. The 1st & 2nd Applicant has not been sued by the Plaintiff. Since the Plaintiff is not happy with their joining his suit and they have also not disclosed their relationship with thePlaintiff. It is prudent in the circumstances that they file their separate suit to lodge their claim.
Probably after lodging such a suit, they can move the court to have the two suits consolidated.
7. Consequently, I find this application as misplaced, lacking in merit and disallow it. I order that each party to bear their own costs.
DATED, SIGNED and DELIVERED this 22nd of May 2014
A. OMOLLO
JUDGE.