[2016] KEHC 5317 (KLR)
The court found that the applicants have a similar cause of action as the original plaintiff and that their joinder would not prejudice the defendant. The court held that the fact that the original summons referred to 'others' without disclosing their names did not invalidate the suit, as there was no one to give...
Source-derived case information.
- Citation
- [2016] KEHC 5317 (KLR)
- Parties
- Plaintiff: Katana Said Kalama & Others; Defendant: Two Thirds Investment Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 232 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application for Joinder of Parties
- Outcome
- Application allowed in terms of prayer 2 and 3; costs not awarded.
- Judges
- AA Omollo
- Legal Topics
- Joinder of Parties, Representative Actions, Adverse Possession, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Katana Said Kalama & Others
Plaintiff
Two Thirds Investment Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Joinder of Parties
Legal Issues
- 1 Whether the applicants should be enjoined as plaintiffs in the suit.
- 2 Whether the originating summons was defective for failure to disclose all plaintiffs.
- 3 Whether the application seeks to cure a procedural defect contrary to Order 1 rule 13 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicants have a similar cause of action as the original plaintiff and that their joinder would not prejudice the defendant. The court held that the fact that the original summons referred to 'others' without disclosing their names did not invalidate the suit, as there was no one to give authority before disclosure. The court agreed with the applicants that joining them would avoid multiplicity of suits and that the application was not an improper attempt to cure a procedural defect. The court further held that, even if the application had the effect of rectifying a defect, there was nothing wrong with it, as amendments that inject life into a suit are...
Court Disposition
Application allowed in terms of prayer 2 and 3; costs not awarded.
Orders
- Applicants are granted leave to be enjoined as Plaintiffs No. 2 to 41 and allowed to participate in the proceedings as such.
- The original plaintiff is ordered to amend the originating summons and any other relevant pleadings to reflect the amendments and effect service on the applicants as per the law.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC CIVIL SUIT NO. 232 OF 2014 (OS)
KATANA SAID KALAMA & OTHERS...........................................PLAINTIFFS
-VERSUS-
TWO THIRDS INVESTMENT LIMITED...................................DEFENDANT
RULING
The applicants moved the Court under Order 1 rule 8 and 10 (2) Order 51 rule 1 of the Rules and section 1A, 1B, 3A and 63 of the Act. They seek the following ;
1. That all further or any proceedings in this suit be stayed pending the hearing and determination of this application.
2. That the Applicants be granted leave to be enjoined ontothis suit and be considered and/or treated as Plaintiffs No. 2 to 41 and be allowed to participate in this proceedings as such.
3. That upon the grant of prayer 2, above, the original Plaintiff herein, being Katana Said Kalama be ordered to amend his originating summons dated 10th September, 2014 and any other relevant pleadings to reflect the sought for amendments herein and effect service on the Applicants as per the law.
4. That the Honourable Court do give any further directions in the matter as the Court may deem necessary.
5. That costs of this application be provided for.
The motion is supported by the 3 grounds on the face of it and the affidavit of Ali Juma Mwakaneno. The applicants aver that they have a similar cause of action as the plaintiff and no prejudice will be suffered by the defendants if they are joined.
The plaintiff has no objection to the application being joined. The Defendant has opposed the application. She filed grounds of opposition that the application seeks to rectify the offence against the mandatory provisions of Order 1 rule 13 of the Civil Procedure Rules through the back door.
Parties have filed written submissions which I have had an opportunity of reading and considering while writing this ruling. The Defendant submit that the plaintiff lacked locus to institute a representative such as it was filed without authority as required in law as provided under Order 1 rule 13 provides thus ;
(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.
The applicant on their part states they are not seeking to rectify the anomaly as claimed by the defendant but have brought this motion as of right. The originating summons as filed read thus in regard to the parties ;
APPLICATION BY :
KATANA SAID KALAMA & OTHERS..................................................PLAINTIFFS
-VERSUS-
TWO THIRDS INVESTMENTS LIMITED..........................................DEFENDANT
The names of the others were not disclosed. The applicants have moved the Court on their own. They claim that they have been living on the land and are therefore entitled to it by way of adverse possession. Consequently they have a similar cause of action. The fact that they may be included in the “others”referred to in the originating summons does not invalidate the suit as before the disclosure was made then there was no one to give the plaintiff to file the suit.
The Applicants have submitted and I entirely agree with that submission that they could have chosen to file separate suits against the Defendant which action would unnecessarily cause multiplicity of suits. In any event in determining the issue of curing a defect through the back door as raised by the defendant, the Court in D. T Dobie & Co (K) Ltd vs Muchina (1982) KLRI at holding No 9 said this
“The Court should aim at sustaining rather than terminating a suit. A suit should only be struck out if it is so weak that it is beyond redemption and incurable by amendment. As long as a suit can be injected with life by amendment, it should not be struck out.
In this instance if the result of the application is to rectify defect then there is nothing wrong with it. However it is my finding that there is nothing wrong with the Applicants being joined into this suit if the cause of action is the same as the Plaintiff's. The Defendant has not denied this fact. In the end, I find merit in the motion dated 10. 4.2015 and allow it in terms of prayer 2 and 3. Costs are not awarded.
Ruling dated and delivered at Mombasa this 11th day of May 2016
A. OMOLLO
JUDGE