[2019] KEHC 1290 (KLR)
The court found that prima facie evidence indicated the proposed 2nd defendant had taken over the operations of the 1st defendant, warranting its joinder as a party to the proceedings. However, the question of whether the 2nd defendant also assumed the liabilities of the 1st defendant is a contested factual issue...
Source-derived case information.
- Citation
- [2019] KEHC 1290 (KLR)
- Parties
- Applicant: Jacob Marianus Kiriama; Respondent: Kenya Co-operative Cremeries Ltd; Respondent: New Kenya Co-operative Creameries Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1262 of 1997
- Procedural Posture
- Joinder Application / Ruling on Application to Join Proposed 2nd Defendant
- Outcome
- Application for joinder of the proposed 2nd defendant allowed; further directions to be given by the trial judge.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Joinder of Parties, Amendment of Decree, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Marianus Kiriama
Applicant
Kenya Co-operative Cremeries Ltd
Respondent
New Kenya Co-operative Creameries Ltd
Respondent
Procedural Posture
Joinder Application / Ruling on Application to Join Proposed 2nd Defendant
Legal Issues
- 1 Whether the proposed 2nd defendant should be joined as a party to the suit.
- 2 Whether the decree should be amended to include the 2nd defendant for purposes of execution.
- 3 Whether the liabilities of the 1st defendant were taken over by the proposed 2nd defendant.
Ratio Decidendi
The court found that prima facie evidence indicated the proposed 2nd defendant had taken over the operations of the 1st defendant, warranting its joinder as a party to the proceedings. However, the question of whether the 2nd defendant also assumed the liabilities of the 1st defendant is a contested factual issue that cannot be resolved on affidavit evidence alone. The court held that such matters require oral evidence and cross-examination to avoid prejudice and ensure justice. Accordingly, the court allowed the joinder of the 2nd defendant but deferred the determination of liability and execution issues to be addressed at a later stage after proper hearing and crystallisation of issues.
Court Disposition
Application for joinder of the proposed 2nd defendant allowed; further directions to be given by the trial judge.
Orders
- The proposed 2nd defendant is joined as a party to these proceedings.
- Parties to identify issues for determination within 30 days from the date hereof.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1262 OF 1997
JACOB MARIANUS KIRIAMA ……………PLAINTIFF/APPLICANT
VERSUS
KENYA CO-OPERATIVE
CREMERIES LTD ….…………….. 1ST DEFENDANT/RESPONDENT
NEW KENYA CO-OPERTIVE
CREAMERIS LTD …PROPOSED 2ND DEFENDANT/RESPODNENT
RULING
The plaintiff herein has a judgment in his favour delivered on 1st July, 1999. To date that judgment has not been executed and the reasons would appear to be what the present application is based on. The plaintiff has filed an application by way of Notice of Motion to join the proposed 2nd defendant in this suit for purposes set out in the application dated 4th June and filed on 2nd July, 2018.
The application seeks to have the decree amended to read the 2nd defendant and notice to show cause why the said decree should not be executed against it. There are several grounds that have been set out on the face of the application alongside a replying affidavit sworn by the co- administrator of the estate of the plaintiff who passed on before the decree was executed.
The application is opposed and there is a replying affidavit sworn by the Acting Company Secretary of the proposed 2nd defendant. This was followed by a supplementary affidavit sworn by the co administrator aforesaid. The parties have filed extensive submissions and cited several authorities which I have gone through.
On reading both the submissions and the authorities, I am persuaded that there are two limbs to the application which may not be decided currently in this ruling. The first limb is whether or not the proposed 2nd defendant should be joined as a party in this matter and the second is whether or not, after the said joinder , execution should be levied against it. I say so because, in the second limb there are several issues that stand out and may not be determined in an application of this nature. The applicant submits that the proposed 2nd defendant took over the assets and liabilities of the 1st defendant herein.
If that be the case, then the decree should be addressed to it for purposes of execution. For the issues to be ventilated to the satisfaction of the parties, I note that notwithstanding several technical issues that have arisen, prima facie evidence points to the fact that the proposed 2nd defendant took over the operations of the 1st defendant. That alone requires it to be cited in these proceedings.
On whether or not liabilities of the 1st defendant were taken over by the proposed 2nd defendant, this is a contested issue which may not be determined by affidavit evidence. I believe the averments by the respective deponents and the documents presented should be subjected to oral interrogation and tested by way of cross-examination. To take any other path may lead to prejudice and injustice to the parties. This is not an application for execution and that is why I believe such a step is necessary.
In view of the foregoing, the 2nd defendant is hereby joined as a party to these proceedings. The Judge who will be seized of this matter shall give directions as to the mode of hearing after the issues have been filed and crystallised by the parties for determination. As this is a very old case, parties should identify issues for determination within 30 days from the date hereof and appear before the Deputy Registrar on 20th January, 2020 to confirm compliance. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 19th Day of December, 2019.
A. MBOGHOLI MSAGHA
JUDGE