[2010] KEHC 623 (KLR)
The court found that both Niceta Muthoni Njagi and Neno Courier Services Limited are necessary parties to the suit. Niceta Muthoni Njagi has a direct interest in the subject matter, and Neno Courier Services Limited is the registered owner of the suit premises. Their joinder is essential for the court to fully and...
Source-derived case information.
- Citation
- [2010] KEHC 623 (KLR)
- Parties
- Plaintiff: Isaiah Kinyua Muturia; Defendant: Neno Sacco Society Ltd; Defendant: Mr. Mangaa; Defendant: Niceta Muthoni Njagi; Defendant: Neno Courier Services Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 228 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application for Joinder and Review of Ex Parte Orders
- Outcome
- application for joinder allowed; application for review of ex parte orders deferred; directions given for amendment of pleadings and maintenance of status quo
- Legal Topics
- Joinder of Parties, Review of Orders, Amendment of Pleadings, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Kinyua Muturia
Plaintiff
Neno Sacco Society Ltd
Defendant
Mr. Mangaa
Defendant
Niceta Muthoni Njagi
Defendant
Neno Courier Services Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Joinder and Review of Ex Parte Orders
Legal Issues
- 1 Whether Niceta Muthoni Njagi and Neno Courier Services Limited should be joined as necessary parties to the suit.
- 2 Whether the ex parte orders granted on 13th July 2010 and extended on 26th July 2010 should be reviewed or set aside.
Ratio Decidendi
The court found that both Niceta Muthoni Njagi and Neno Courier Services Limited are necessary parties to the suit. Niceta Muthoni Njagi has a direct interest in the subject matter, and Neno Courier Services Limited is the registered owner of the suit premises. Their joinder is essential for the court to fully and effectively adjudicate all issues relating to the property in dispute. The court exercised its discretion under Order 1 Rule 10(2) and (4) of the Civil Procedure Rules to order their addition as defendants. The court further directed that the plaint be amended to reflect the new parties and that all parties be given an opportunity to file amended pleadings. The status quo was...
Court Disposition
application for joinder allowed; application for review of ex parte orders deferred; directions given for amendment of pleadings and maintenance of status quo
Orders
- Niceta Muthoni Njagi is added as the 3rd Defendant.
- Neno Courier Services Limited is added as the 4th Defendant.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OFKENYA
ATMOMBASA
CIVIL SUIT NO. 228 OF 2010
ISAIAH KINYUA MUTURIA …………..……PLAINTIFF
VERSUS
NENO SACCO SOCIETY LTD
MR. MANGAA …………………………….DEFENDANTS
R U L I N G
This is an application by way of Notice of Motion dated25th August 2010 under the provisions of Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 1, Rule 10 (2) and Order XLIV, Rule 1 of the Civil Procedure Rules. It is made by one Niceta Muthoni Njagi who seeks inter alia, the following orders:-
-That this Honourable court be pleased to join Niceta Muthoni Njagi to this suit as a necessary party.
-That this Honourable Court be pleased to review and set aside ex-debito justitiae, its Order made on the 13th day of July 2010 and extended on the 26th day of July, 2010.
Upon deliberation and consultations, it became clear that there was no objection to the joinder of the said Niceta Muthoni Njagi as a party in this suit.
Upon consideration of all the submissions of Counsel the pleadings, affidavits and all material before me, I do agree that Niceta Muthoni Njagi ought to be made a party to enable her present her application and in particular Prayer 3 of the Application.
At the same time, it has become clear and certain that another party not yet joined called Neno Courier Services Limited is the registered owner of the suit premises, MSA/Block XVI/III/MI alongKenyatta Avenue. As a result I do find that the said company is a necessary party and no proceedings can be litigated and in particular this suit touching on the said property without the participation of the said owner and being made a party in the suit. It is the only way that the court can effectually and completely adjudicate upon and settle all questions invoked in the suit.
In exercise of this court’s power and discretion under the provision of Order 1 Rule 10 (2) and (4). I do hereby order as follows:-
1. That Niceta Muthoni Njagi be added in the suit as the 3rd Defendant.
2. That Neno Courier Services Limited be added as the 4thDefendant.
In view of the provisions of Order 1 Rule 10 (4) I am of the view that the plaint must be amended to reflect the addition and to determine whether there is any cause/s of action against the said parties and if the ex-parte orders granted in any way affects them and if it could possibly have been granted if they were parties from the beginning and/or if it should be continued pending the inter parties hearing of the application for injunction or not.
The Plaint as amended shall be filed and served within 14 days. The Defendants shall file and serve their respective Amended Defences and Defences within 14 days of service.
The Status Quo shall be maintained pending the inter parties hearing of prayer 3 herein.
In the meantime, the Defendants company is at liberty to file and serve its Replying Affidavit within 14 days hereof. Costs shall be in the application. New date at Registry on priority basis.
Dated and delivered atMombasathis 18th day of October 2010.
M.K. IBRAHIM
J U D G E
Coram
Ibrahim, J
Court clerk – Kazungu
Mr. Odhiambo for the Applicant
Mr. Kimani for the plaintiff/Respondent
Mr. Kaburu for Defendant
Ruling delivered in their presence.
Ibrahim, J.
FURTHER ORDER
Further hearing shall be on 8. 12. 2010. Status quo shall be maintained. The plaintiff shall give a written undertaking within the next 7 days to pay any damages expenses and/or costs which shall or may be incurred by the defendants jointly and/or severally as a result of the grant of the Exparte Interim injunction Orders on 8/07/10 and renewed/extended from time to time, in the event that he shall be unsuccessful in the applications to set aside/review and/or injunction application itself.
Ibrahim, J.