[2015] KEHC 789 (KLR)
The court found that while the CDF Act provides for dispute resolution mechanisms, the plaintiffs had already filed the suit with the expectation that their complaint would be heard and determined by the court. The second defendant, as the area Member of Parliament and chairperson of the Constituency Development...
Source-derived case information.
- Citation
- [2015] KEHC 789 (KLR)
- Parties
- Plaintiff: Jeremiah Ngonyo; Plaintiff: Douglas Mtawali Charo; Plaintiff: Loice Ngari Kombo; Plaintiff: Samuel M. Birya; Plaintiff: Moses Dida Khamisi; Plaintiff: Aya Safari Harrison; Plaintiff: Richard Kazungu; Defendant: Constituency Development Fund Board; Defendant: Amason Jeffa Kingi; Defendant: Chairman Magarini CDF Committee
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 138 of 2012
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Second Defendant
- Outcome
- application dismissed; suit to proceed to full hearing
- Judges
- SJ Chitembwe
- Legal Topics
- Striking Out of Parties, Exhaustion of Statutory Remedies, Misjoinder and Nonjoinder, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Ngonyo
Plaintiff
Douglas Mtawali Charo
Plaintiff
Loice Ngari Kombo
Plaintiff
Samuel M. Birya
Plaintiff
Moses Dida Khamisi
Plaintiff
Aya Safari Harrison
Plaintiff
Richard Kazungu
Plaintiff
Constituency Development Fund Board
Defendant
Amason Jeffa Kingi
Defendant
Chairman Magarini CDF Committee
Defendant
Procedural Posture
Civil Application / Ruling on Application to Strike Out Second Defendant
Legal Issues
- 1 Whether the suit against the second defendant should be struck out for failure to exhaust statutory dispute resolution mechanisms.
- 2 Whether the defendants are properly sued as juridical bodies.
- 3 Whether the suit should be dismissed for misjoinder or non-joinder of parties.
Ratio Decidendi
The court found that while the CDF Act provides for dispute resolution mechanisms, the plaintiffs had already filed the suit with the expectation that their complaint would be heard and determined by the court. The second defendant, as the area Member of Parliament and chairperson of the Constituency Development Committee, was properly enjoined given his statutory role. The court held that it would not be prudent to strike out the suit at this stage, especially as the parties could exchange documents and proceed to a hearing on the merits. The application to strike out the second defendant was therefore dismissed, and the suit was allowed to proceed to full hearing.
Court Disposition
application dismissed; suit to proceed to full hearing
Orders
- Application dated 1st April 2015 is dismissed.
- Parties to exchange documents within 45 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT MALINDI
HCCC NO.138 OF 2012
1. JEREMIAH NGONYO
2. DOUGLAS MTAWALI CHARO
3. LOICE NGARI KOMBO
4. SAMUEL M. BIRYA
5. MOSES DIDA KHAMISI
6. AYA SAFARI HARRISON
7. RICHARD KAZUNGU..................................................................PLAINTIFFS/RESPONDENTS
=VRS=
1. CONSTITUENCY DEVELOPMENT FUND BOARD
2. AMASON JEFFA KINGI (MAGARINI MEMBER OF PARLIAMENT 2008-2012
3. CHAIRMAN MAGARINI CDF COMMITTEE.....................................DEFENDANT/APPLICANT
R U L I N G
The Application dated 1st April 2015 seeks to have the suit against the second defendant struck out with costs. It is brought under Order 2 of the Civil Procedure Rules and section 52 of the CDF Act No. 10 of 2003. The Plaintiff filed a replying affidavit sworn by Jeremiah Ngonyo on 15/6/15. Parties agreed to determine the application by way of written submissions.
The Applicant's main contention is that the Plaintiffs did not exhaust dispute resolution mechanism before they filed the suit. The CDF Act establishes a Constituency Development fund Board and all complaints have to be sent to that Board before a suit is filed. The Board can appoint an arbitration panel to deal with the dispute. The applicant further contends that the defendants are not properly sued as they are not juridical bodies. All the documents the plaintiffs require are available at the CDF offices.
Counsel for the plaintiffs maintain that no suit should be dismissed for misjoinder or non-joinder of parties. The court has jurisdiction to entertain the dispute. The suit was filed way back in 2012 and no such application was filed all this time.
I have perused the pleadings herein, the plaintiffs were allowed to amend the plaint. I believe the 2nd defendant was enjoined as he was the area member of parliament for Magarini Constituency for the period 2008 to 2012. The plaintiffs filed this suit expecting to have their complaint heard and determined by the court. The CDF Act provides for a Constituency Development Committee under Section 23. The elected area member of parliament is a member of the 15 members Development Committee. He is also the chairperson of that Committee.
Since the plaintiffs filed this suit expecting that it will be heard and the required explanation will be provided, I do find that it is not prudent to grant the application. The best way forward is for parties to exchange the documents they shall rely upon and have the suit determined on merit. The 2nd Defendant can opt not to tender any evidence and the required information is part of the CDF's documents.
In the end, I do find that the suit should proceed to full hearing. Parties should exchange documents within 45 days hereof. The application dated 1st April 2015 is dismissed. Costs shall follow the outcome of the main suit.
Dated, delivered and signed at Malindi this. 1St day of December, 2015.
SAID J. CHITEMBWE
JUDGE