[2007] KEHC 3583 (KLR)
The court held that the applicant's lack of evidence of purchase at this preliminary stage does not preclude his joinder as a defendant. The court's power under Order 1 rule 10(2) of the Civil Procedure Rules is broad and allows for the addition of any party whose presence is necessary for the effective and complete...
Source-derived case information.
- Citation
- [2007] KEHC 3583 (KLR)
- Parties
- Plaintiff: John Kuria Mathenge t/a Aberdare Filling Station; Defendant: Caltex Oil (Kenya) Ltd; Defendant: Gallant Auctioneers; Applicant: Samuel Gitonga Kanja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 677 of 2005
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Joinder of Intended Interested Party as Defendant
- Outcome
- Application for joinder granted; costs in the cause.
- Judges
- JM Khamoni
- Legal Topics
- Joinder of Parties, Bona Fide Purchaser, Public Auction, Order 1 Rule 10, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kuria Mathenge t/a Aberdare Filling Station
Plaintiff
Caltex Oil (Kenya) Ltd
Defendant
Gallant Auctioneers
Defendant
Samuel Gitonga Kanja
Applicant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Joinder of Intended Interested Party as Defendant
Legal Issues
- 1 Whether the applicant should be joined as a defendant in the suit under Order 1 rule 10(2) of the Civil Procedure Rules.
- 2 Whether lack of evidence of purchase at this stage precludes joinder of the applicant as a party.
Ratio Decidendi
The court held that the applicant's lack of evidence of purchase at this preliminary stage does not preclude his joinder as a defendant. The court's power under Order 1 rule 10(2) of the Civil Procedure Rules is broad and allows for the addition of any party whose presence is necessary for the effective and complete adjudication of the suit. The applicant's interest in the property, as claimed, is sufficient for joinder, and any challenge to the validity of his interest should be addressed at the hearing of the main suit. Accordingly, the application for joinder was granted, with costs to be in the cause.
Court Disposition
Application for joinder granted; costs in the cause.
Orders
- Applicant Samuel Gitonga Kanja is joined as a defendant in the suit.
- Costs of the Chamber Summons shall be costs in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
CIVIL CASE 677 OF 2005
JOHN KURIA MATHENGE T/A ABERDARE FILLING STATION …. PLAINTIFF/RESPONDENT
Versus
CALTEX OIL (KENYA) LTD ………..................................……...1ST DEFENDANT/RESPONDENT
GALLANT AUCTIONEERS ………................................………. 2ND DEFENDANT/RESPONDENT
SAMUEL GITONGA KANJA
(INTENDED INTERESTED PARTY/DEFENDANT) ………....................................…... APPLICANT
RULING
In this Chamber Summons dated 26th September 2007, the Applicant Samuel Gitonga Kanja, also referred to as Intended Interested Party/Defendant, wishes to be joined in this suit as a defendant on the ground that he purchased the suit property at a public auction and paid the full purchase price of the suit property and that he was a bona fide purchaser for value without notice.
The Applicant's application is supported by the First Defendant/Respondent. The Second Defendant did not show interest in this Chamber Summons. But the Plaintiff strongly opposes the application on the ground that the Applicant has not produced evidence to show that he purchased the suit property as alleged.
In my considered view, even if it is accepted that indeed the Applicant has produced no evidence to show that he bought the suit property at an auction sale and that he bought the property as a bona fide purchaser without notice, that need not worry the Plaintiff at the moment when the Applicant is simply expressing his interest in this suit.
As evidence to prove the existence of the Applicant's interest will be necessary only during the hearing of the main suit and to-day Order 1 rule 10 (2) of the Civil Procedure Rules allows this court
"either upon or without the application of either party, --- (t0) order --- that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the suit, be added";
this Chamber Summons be and is hereby granted as prayed except with regard to the costs of the Chamber Summons which shall be costs in the cause.
Dated this 26th day of October 2007.
J. M. KHAMONI
JUDGE
Present
Mr. Gachie for Mr. Mathenge Gitaga for the Plaintiff
Court Clerk – Kipkurui
Further Order: Upon oral application by Mr. Gachie, Chamber Summons dated 26. 6.2007 is now fixed for hearing interpartes on 13. 11. 2007 before any other Judge and the interim orders therein therefore extended till that date.
Hearing Notice to issue.
J. M. KHAMONI
JUDGE
26. 10. 07