[2007] KEHC 1922 (KLR)
The court found that, in the interest of justice and for the purpose of determining the real issues in controversy, it was just and fair to enjoin Jonathan Muema Maingi, Margaret Wairimu, and Marani Antony Paul as defendants. The plaintiff had acted under a misapprehension regarding the correct officials of the 1st...
Source-derived case information.
- Citation
- [2007] KEHC 1922 (KLR)
- Parties
- Plaintiff: Daniel Waithaka Mwangi; Defendant: NARC-KENYA; Defendant: Raphael Tuju; Defendant: Mukhisa Kituyi; Defendant: Morris Dzoro; Defendant: Erastus Kihara Mureithi; Defendant: Samuel Mureithi Wahome; Defendant: Stephen Maina Kanyoro; Defendant: Jonathan Muema Maingi; Defendant: Margaret Wairimu; Defendant: Marani Antony Paul
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 154 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Enjoin Parties
- Outcome
- Application to enjoin new defendants allowed; costs awarded against plaintiff; interim orders vacated.
- Judges
- LK Kimaru
- Legal Topics
- Joinder of Parties, Misjoinder and Nonjoinder, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Waithaka Mwangi
Plaintiff
NARC-KENYA
Defendant
Raphael Tuju
Defendant
Mukhisa Kituyi
Defendant
Morris Dzoro
Defendant
Erastus Kihara Mureithi
Defendant
Samuel Mureithi Wahome
Defendant
Stephen Maina Kanyoro
Defendant
Jonathan Muema Maingi
Defendant
Margaret Wairimu
Defendant
Marani Antony Paul
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Enjoin Parties
Legal Issues
- 1 Whether the court should allow the plaintiff to enjoin Jonathan Muema Maingi, Margaret Wairimu, and Marani Antony Paul as defendants to the suit.
- 2 Whether the plaintiff should bear the costs of the application due to delay in making the application.
- 3 Whether interim orders issued prior to joinder should be vacated.
Ratio Decidendi
The court found that, in the interest of justice and for the purpose of determining the real issues in controversy, it was just and fair to enjoin Jonathan Muema Maingi, Margaret Wairimu, and Marani Antony Paul as defendants. The plaintiff had acted under a misapprehension regarding the correct officials of the 1st defendant and, upon learning the true facts, sought to rectify the error. However, the court noted that the plaintiff had been aware of the correct officials since 2nd August 2007 but failed to make a timely application, demonstrating indolence. As a result, while the application to enjoin the new parties was allowed, the plaintiff was ordered to pay the costs of the...
Court Disposition
Application to enjoin new defendants allowed; costs awarded against plaintiff; interim orders vacated.
Orders
- Jonathan Muema Maingi, Margaret Wairimu, and Marani Antony Paul are enjoined as the 8th, 9th, and 10th defendants respectively.
- Plaintiff to pay the costs of this application to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT 154 OF 2007
DANIEL WAITHAKA MWANGI………........................................PLAINTIFF
VERSUS
NARC-KENYA…………….……………....................……...1ST DEFENDANT
RAPHAEL TUJU………………………....................……...2ND DEFENDANT
MUKHISA KITUYI……………..……...…....................…...3RD DEFENDANT
MORRIS DZORO………………….………...................…...4TH DEFENDANT
ERASTUS KIHARA MUREITHI………….....................…..5TH DEFENDANT
SAMUEL MUREITHI WAHOME…………....................….6TH DEFENDANT
STEPHEN MAINA KANYORO……………....................…7TH DEFENDANT
RULING
The plaintiff sued the 1st defendant together with the 2nd, 3rd & 4th defendants. He averred in his plaint that the 2nd, 3rd & 4th defendants were Chairman, Secretary and Treasurer respectively of the 1st defendant. However, when the plaintiff served the application on the said defendants, one Jonathan Muema Maingi filed a replying affidavit. In the said affidavit he stated that he was the chairman of the 1st defendant. The plaintiff now accepts that the officials of the NARC-KENYA party are Jonathan Muema Maingi – Chairman, Margaret Wairimu – Seccretary General and Marani Antony Paul as the Treasurer. He now wishes to enjoin them as parties to this suit. He has invoked the provisions of Order 1 rule 10(2)of theCivil Procedure Rules which provides as follows;-
“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been enjoined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions in the suit, be added.”
The defendants have opposed the oral application made by the plaintiff to enjoin the said three officials as parties to this suit.
I have carefully considered the rival submissions made by the parties to this application. I am aware that this suit potentially concerns the election of the people’s representative in parliament. For the interest of justice and for the purposes of determining the real issues in controversy, I think it would be just and fair to enjoin the said three officials as parties to this suit. It seems that the plaintiff was under misapprehension that the 2nd, 3rd & 4th defendants were the officials of the 1st defendant. Now that he has been made aware, he wishes to make amends by enjoining the relevant parties to the suit. This court has however noted that the plaintiff is guilty of laches. He was indolent. He has been aware since the 2nd August 2007 who the officials of the 1st defendant were but chose not to make an appropriate application before court. For that reason, I will condemn the plaintiff to pay the costs of this application to the defendants. I will allow the application made by the plaintiff. Jonathan Muema Maingi, Margaret Wairimu and Marani Antony Paul are enjoined as the 8th, 9th and 10th defendants respectively. However since the Interim Orders were issued when they were not parties to the suit, the said Interim Orders are hereby vacated.
DATED at NAKURU this 4th day of SEPTEMBER, 2007
L. KIMARU
JUDGE