[2010] KEHC 3731 (KLR)
The court held that it would be unjust and improper to determine the preliminary objection or proceed with the suit before ensuring that the 5,700 pensioners, on whose behalf the suit was brought, are notified of the institution of the suit. The mandatory requirements of Order 1, rule 8 of the Civil Procedure Rules...
Source-derived case information.
- Citation
- [2010] KEHC 3731 (KLR)
- Parties
- Plaintiff: Blasio Ondiek; Plaintiff: Charles Ndola; Plaintiff: Sylvester Owour; Defendant: Communications Commission of Kenya; Defendant: Telkom Kenya Limited; Defendant: Postal Corporation of Kenya; Defendant: Minister for Information and Communications
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 352 of 2007
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Procedural Compliance With Representative Suit Requirements
- Outcome
- Directions issued for notice to be given to represented persons before further proceedings.
- Legal Topics
- Representative Suits, Notice Requirements, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Blasio Ondiek
Plaintiff
Charles Ndola
Plaintiff
Sylvester Owour
Plaintiff
Communications Commission of Kenya
Defendant
Telkom Kenya Limited
Defendant
Postal Corporation of Kenya
Defendant
Minister for Information and Communications
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Procedural Compliance With Representative Suit Requirements
Legal Issues
- 1 Whether the plaintiffs complied with the mandatory notice requirements for representative suits under Order 1, rule 8 of the Civil Procedure Rules.
- 2 Whether the court should proceed to determine the preliminary objection before notice is given to the represented persons.
Ratio Decidendi
The court held that it would be unjust and improper to determine the preliminary objection or proceed with the suit before ensuring that the 5,700 pensioners, on whose behalf the suit was brought, are notified of the institution of the suit. The mandatory requirements of Order 1, rule 8 of the Civil Procedure Rules had not been complied with, as no directions for notice had been sought or given. The court therefore directed that notice be given by advertisement in specified newspapers, and only after such notice could the preliminary objection be argued afresh or other steps taken. The court emphasized the right of the represented persons to be informed and to participate in the...
Court Disposition
Directions issued for notice to be given to represented persons before further proceedings.
Orders
- Notice of institution of the suit to be given by advertisement in one issue each of Daily Nation, The Standard, and Taifa Leo newspapers.
- After such advertisement, the preliminary objection may be argued afresh or parties may take other appropriate steps.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 352 of 2007
1. BLASIO ONDIEK
2. CHARLES NDOLA
3. SYLVESTER OWOUR
(Suing on their own behalf and on behalf of the
5,700 pensioners of the defunct
Kenya Posts &Telecommunications Corporation).....................................PLAINTIFFS
V E R S U S
1. COMMUNICATIONS COMMISSION OF KENYA
2. TELKOM KENYA LIMITED
3. POSTAL CORPORATION OF KENYA
4. MINISTER FOR INFORMATIONAND COMMUNICATIONS ........................DEFENDANTS
R U L I N G
The three Plaintiffs herein filed suit on their own behalf and on behalf of 5,700 “pensioners of the defunct Kenya Posts and Telecommunications Corporation”. This is therefore a representative suit.
Order 1, rule 8 of the Civil Procedure Rules (the Rules) provides as follows:-
“8. (1) Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued, or may be authorized by the court to defend in such suit, on behalf of or for the benefit of all persons so interested.
(2) The court shall in such case direct the plaintiffs to give notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.”
It is common ground here that no directions by the court as to the giving of notice of the institution of this suit to the 5,700 persons on whose behalf the suit was brought have been sought or given. Those persons have a right to know that a suit has been filed on their behalf. Secondly, they ought to know what is being urged on their behalf and against them in the suit.
A preliminary objection to the suit upon various points of law was taken and argued. I do not think that it would be just or proper to render a decision upon that preliminary objection before the 5,700 persons on whose behalf the suit has been brought have been notified of the institution of the suit and thereby accorded an opportunity to make such representation to court as they may want to.
In the circumstances, I hereby direct under Order 1, rule 8 (2) of the Rules that notice of institution of this suit be given by advertisement in one issue each of the following newspapers:-
1. Daily Nation
2. The Standard
3. Taifa Leo
After such advertisement the preliminary objection by notice dated 4th May, 2007 can be argued afresh, or parties take such other steps as they may deem fit. Costs of the proceedings so far shall be in the cause. Those will be the orders of the court.
DATED AT NAIROBI THIS 4TH DAY OF FEBRUARY, 2010
H. P. G. WAWERU
J U D G E
DELIVERED THIS 5TH DAY OF FEBRUARY, 2010