[2014] KEHC 8696 (KLR)
The court determined that the presence of Mr. Michael Matu, the successful bidder at the auction, was absolutely necessary for the effective and complete adjudication of the issues raised in the application. The judge found that, despite the applicants' counsel's arguments to the contrary, the omission to join Mr....
Source-derived case information.
- Citation
- [2014] KEHC 8696 (KLR)
- Parties
- Plaintiff: Maina Wanjigi; Plaintiff: Jane Nduta Chege; Defendant: Bank of Africa Kenya Limited; Defendant: Garam Investment Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 237 of 2014
- Procedural Posture
- Civil Case / Partial Ruling on Joinder of Party
- Outcome
- Application for joinder of Mr. Michael Matu as a party granted.
- Judges
- F Gikonyo
- Legal Topics
- Joinder of Parties, Statutory Power of Sale, Auction Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maina Wanjigi
Plaintiff
Jane Nduta Chege
Plaintiff
Bank of Africa Kenya Limited
Defendant
Garam Investment Auctioneers
Defendant
Procedural Posture
Civil Case / Partial Ruling on Joinder of Party
Legal Issues
- 1 Whether the successful bidder, Mr. Michael Matu, should be joined as a necessary party to the proceedings.
- 2 Whether the absence of the successful bidder impedes the court's ability to effectually and completely adjudicate the dispute.
Ratio Decidendi
The court determined that the presence of Mr. Michael Matu, the successful bidder at the auction, was absolutely necessary for the effective and complete adjudication of the issues raised in the application. The judge found that, despite the applicants' counsel's arguments to the contrary, the omission to join Mr. Matu could not be justified, as the issues in controversy directly involved him as a bidder. The court exercised its power under Order 1 of the Civil Procedure Rules to order the addition of Mr. Matu as a party, emphasizing that this step was required not to assist any party but to serve the constitutional imperative of substantive justice. The court directed that Mr. Matu be...
Court Disposition
Application for joinder of Mr. Michael Matu as a party granted.
Orders
- The name of Mr. Michael Matu is to be added as a party to these proceedings.
- Mr. Michael Matu shall be served with the plaint and application within 14 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 237 OF 2014
MAINA WANJIGI ………………………………...............1ST PLAINTIFF/APPLICANT
JANE NDUTA CHEGE ……………….………………..…….2ND PLAINTIFF/APPLICANT
VERSUS
BANK OF AFRICA KENYA LIMITED ..…………………........1ST DEFENDANT/RESPONDENT
GARAM INVESTMENT AUCTIONEERS …………….………2ND DEFENDANT/RESPONDENT
PARTIAL RULING
[1] The Applicants are challenging the sale of the suit property namely, L.R No. 3734/1101, IR 55035, Lavington, Nairobi, through a purported auction conducted on 3rd June, 2014, by the 2nd Defendant on behalf of the 1st Defendant in exercise of the chargee’s statutory power, for, being unlawful and or un-procedural. I have listened to the counsels and two mind-boggling issues emerged. One; that the issues canvassed relate to a known bidder. And, two; the said bidder is not a party in the suit. The said bidder is the successful bidder according to the Respondents and his name is Mr MICHAEL MATU. Despite repeated warning by counsel for the Respondents that Mr MICHAEL MATU is a necessary party but had not been joined in these proceedings, counsel for the Applicants seemed not to see any necessity of applying for the joinder of the said known bidder. Instead, he tried to justify the omission by saying it was not fatal. Surprisingly, the same counsel for the Applicants in trying to distinguish the applicability of the case of SAMUEL KIMANI WAAINAINA v HFCK [2006] eKLR stated categorically that the issues herein are among bidders. I have taken time to carefully consider the real issues in controversy herein, and came to the conclusion that the presence of Mr MICHAEL MATU is absolutely necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the application herein. The position I have taken is not in any way intended to assist any party in the proceedings, but rather it is out of the constitutional desire to serve substantive justice. I am also guided by order 1 of the Civil Procedure Rules which grants the Court power to order for addition of parties on its motion where the presence of such party is necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit. I, therefore, order the name of MICHAEL MATU to be added in these proceedings. He shall be served with the plaint and the application herein within the next 14 days. And on such service, he shall enter appearance and file his reply to the application within 7 days thereof. I will thereafter, with the advantage of his response render a ruling resolving all the issues in the application. It is so ordered.
Dated, signed and delivered in court at Nairobi this 25th day of September, 2014
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F. GIKONYO
JUDGE
In the presence of:-
Alex court clerk
Angaya for Mr. Menye for plaintiff
M/s Mate for defendant