[2017] KEHC 7768 (KLR)
The court found that the misdescription of the 1st and 2nd respondents was not fatal to the petition because the intended parties were identifiable and no prejudice or confusion had been caused. The court relied on established case law and the Civil Procedure Rules, which allow for amendment of pleadings to correct...
Source-derived case information.
- Citation
- [2017] KEHC 7768 (KLR)
- Parties
- Applicant: Emmanuel Obiero Ochieng; Applicant: Sperus Gor Okech; Applicant: Sadat Abdalla Khamisi; Respondent: Kenya Premier League Ltd; Respondent: Football Federation of Kenya; Respondent: Sports Disputes Tribunal
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 4 of 2017
- Procedural Posture
- Constitutional Petition / Ruling on Misdescription of Parties and Interim Orders
- Outcome
- Misdescription of parties not fatal; leave to amend granted; interim orders vacated.
- Judges
- TW Cherere
- Legal Topics
- Misdescription of Parties, Amendment of Pleadings, Interim Orders, Enforcement of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Obiero Ochieng
Applicant
Sperus Gor Okech
Applicant
Sadat Abdalla Khamisi
Applicant
Kenya Premier League Ltd
Respondent
Football Federation of Kenya
Respondent
Sports Disputes Tribunal
Respondent
Procedural Posture
Constitutional Petition / Ruling on Misdescription of Parties and Interim Orders
Legal Issues
- 1 Whether the misdescription of the 1st and 2nd respondents is fatal to the petition.
- 2 Whether the interim conservatory orders issued against misdescribed parties can be enforced.
- 3 Whether the petitioners should be granted leave to amend the pleadings to correct the misdescription.
Ratio Decidendi
The court found that the misdescription of the 1st and 2nd respondents was not fatal to the petition because the intended parties were identifiable and no prejudice or confusion had been caused. The court relied on established case law and the Civil Procedure Rules, which allow for amendment of pleadings to correct such misdescription. However, the interim conservatory orders previously issued against the misdescribed parties were vacated as they were incapable of enforcement. The petitioners were granted liberty to amend the pleadings to correct the misdescription.
Court Disposition
Misdescription of parties not fatal; leave to amend granted; interim orders vacated.
Orders
- Petitioners are at liberty to amend the pleadings to correct the misdescription of parties.
- The interim conservatory order issued on 15th February 2017 is hereby vacated.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CONSTITUTIONAL AND JUDICIAL REVIEW
PETITION NUMBER 4 OF 2017
EMMANUEL OBIERO OCHIENG..................................1st PETITIONER
SPERUS GOR OKECH.....................................................2nd PETITIONER
SADAT ABDALLA KHAMISI.........................................3rd PETITIONER
VERSUS
KENYA PEMIER LEAGUE LTD.................................1ST RESPONDENT
FOOTBALL FEDERATION OF KENYA...................2ND RESPONDENT
SPORTS DISPUTES TRIBUNAL................................3RD RESPONDENT
RULING
When this petition came up for mention today; the parties’ advocates sought to address the court as regards misdescription of parties.
Mr. Ogonda advocate for Kenyan Premier League submitted that the correct party that ought to have been sued is Kenyan Premier League and that the interim orders issued against Kenya Premier League cannot be sustained as against his client.
Mr. Ochieng advocate on the other hand argued that his client is not Football Federation of Kenya but Football Kenya Federation which is a society that cannot be sued in its own name and that the interim orders issued against Football Federation of Kenya cannot be enforced against his client.
Mr. Simiyu advocate for the petitioners conceded the misdescription of the 1st and 2nd respondents and sought leave to amend the pleadings. He submitted that the misdescription has not caused any prejudice to the 1st and 2nd respondent or caused confusion as to who the intended respondents are.
I have considered the submission by counsels and I find that this is not a case of non-existent or faceless entities that would invariably be incapable of suing or being sued but is a case of pure misdescription of parties. I find support of that position in the words of Lenaola J in the case of NZOMO WAMBUA v WOTE TOWN COUNCIL (2008) eKLR while citing the case ofJAMES MWANGAGI & 64 OTHERS VS WOTE TOWN COUNCIL HCC 113/ 2004that:-
“Clearly, the advocates as did their client knew who was being sued and understood the misdescription in the name of the defendant but that fact does not change the cause of action against it nor the substratum of the suit as well as the questions in dispute. I therefore agree with Wendoh J, in James Mwangagi (supra) when the learned judge stated as follows:-
“the Defendant/Respondent is not properly described but mere misdescriptions of a party cannot render a suit incompetent. This matter has just been filed and the court has wide discretion under Order 1 Rule 10 of Civil Procedure Rule to an amendment of the parties on its own or upon application”
From the foregoing; I find that the misdescription is not fatal to this petition and that the petitioners are at liberty to amend in such manner as may be necessary. Pending the amendment however; this court hereby vacates the interim conservatory order issued on 15th February 2017 since is it incapable of being enforced.
DATED AND DELIVERED THIS 23RD DAY OF FEBRUARY 2017
T. WANJIKU CHERERE
JUDGE
Mr. Simiyu for the petitioner
Mr. Ogonda for Kenyan Premier League.
Mr. Ochieng for Football Kenya Federation.
T.WANJIKU CHERERE
JUDGE
23/02/2017