[2014] KEHC 683 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

MILIMANI LAW COURTS

ENVIRONMENTAL & LAND DIVISION

ELC NO. 910 OF 1997

MOHAN GALOT......................................................................................... PLAINTIFF

-VERSUS-

CITY COUNCIL OF NAIROBI now

NAIROBI COUNTY GOVERNMENT..............................................1ST DEFENDANT

NAIROBI CITY WATER & SWERAGE COMPANY LTD.............2ND DEFENDANT

RULING

1. On 18th February, 2014 the parties to the suit mutually fixed this case for a pre- trial conference to be convened on 27th October, 2014. On the said date however Mr. Mwenesi for the 1st Defendant notified the court that the 1st Defendant wanted to raise a preliminary issue of joinder or misjoinder to the proceedings. As the Plaintiff had not fully complied with the provisions of Order 3 Rule 2 and Order 11 generally, the court directed the parties to fully comply with the requirements of Order 3 Rule 2 as well as Order 7 Rule 5 of the Civil Procedure Rules. The court also then directed that the 1st Defendant would be heard on the issue of misjoinder at the next pretrial conference which was then slated for 24th November, 2014. Prior to the said date however the 1st Defendant filed a formal application to strike out the 1st Defendant’s name and also as a party to these proceedings.

2. The underlying facts are brief. The Plaintiff is the proprietor of all that property known as L.R. No. 7022/7. The property is situate within the administrative borough of Kiambu County. The 2nd Defendant like the 1st Defendant before it supplies water to the residents of the larger Nairobi county and its environs.

3. Within his parcel of land the Plaintiff erected a “massive dam”. Sometime in 1996 water spilled from the 1st Defendant’s water reservoir in Kiambu County. The Plaintiff says the 1st Defendant’s water system broke down. Water, effluence and waste as a result flooded the Plaintiff property. Property was destroyed. The Plaintiff’s dam was affected. As a result the Plaintiff’s filed suit against the 1st Defendant. It was a suit pegged both on a Rylands –v- Fletcher liability and also on negligence. The suit was filed in April, 1997.

4. Apparently, the Plaintiff claimed repeat occurrences when the 1st Defendant’s reservoir bursts its brim in 2001, 2002, 2003 and 2004. The spillages caused massive erosions as well as corrosions and pollution due to the various water treatment chemicals. The Plaintiff sought to amend its plaint in 2008 and was duly granted the court’s permission on 5th November, 2008.

5. Sometime in the year 2010, the Plaintiff apparently discovered that the 1st Defendant water reservoir which intermittently seemed to have catastrophic results rather than the lifesaving purpose water is associated with, was being managed and controlled by the 2nd Defendant. The Plaintiff sought permission of the court to join the 2nd Defendant to the proceedings and, with the consent of the 1st Defendant, the 2nd Defendant was joined. That was on 19th April, 2010. A Further Amended Plaint was duly filed on 7th May, 2010. The 2nd Defendant having been duly served filed its defence statement. Save for the descriptive paragraph on the 2nd Defendant and an averment that the 2nd Defendant in December, 2003 took over the provision of water and sewerage services from the 1st Defendant including control of the allegedly culpable water reservoir the contents of the statement of claim were as they had been since the filing of the Amended plaint.

6. The 1st Defendant’s current application is pegged on the Affidavit of one Karisa Iha. It is simple and straight forward. The 1st Defendant contends that there is an agreement between the 1st Defendant and the 2nd Defendant where the latter has agreed to indemnify the former against all actions, suits, expenses, proceedings claims and costs arising from non-compliance with any statute or other equipment. The 1st Defendant has relied on the Agency Agreement between the 1st Defendant and the 2nd Defendant, where 2nd Defendant agreed inter alia to

“........ take over the conduct of all the suits pending before the court on account of water and sewerage Department and all the outstanding judgment debts and [shall] keep the council fully indemnified at all times in this respect”.

7. There is no doubt that under Order 1 Rule 10(2) of the Civil Procedure Rules the Court may at any stage of the proceedings order the name of any party joined either as Plaintiff or Defendant to be struck out. The court too has powers at any stage of the proceedings, to join whether as a Defendant or a Plaintiff any person whose presence may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit.

8. The question is whether the 1st Defendant was or is improperly joined to these proceedings. I do not believe so. The 1st Defendant was always in control of the circumstances which led to the claim herein. The claim is in the nature of strict liability. It would not be proper to excuse the 1st Defendant from these proceedings. If excused the issue of indemnity itself would be of no use. Indemnity can only arise if there is judgment against the said 1st Defendant and where the law truly feels it proper to order the indemnity. Before then though a party must be held culpable.

9. Even, if the court was to get involved in the purely private arrangement between the 1st and 2nd Defendants for the indemnity to occur the court must first determine whether the 2nd Defendants obligations were primary obligations. In asking the court to let go of the 1st Defendant, the 1st Defendant is simply asking the court to issue a summary judgment order. Yet the 2nd Defendant has expressly denied inheriting the 1st Defendant’s liabilities.

10. The issue of indemnity aside, it is quite apparent that most of the alleged acts of omission and/or commission complained of on the part of the 1st Defendant took place prior to the year 2003. It would be critical to have the 1st Defendant as a party in the circumstances. The 2nd Defendant was then even not in existence and in my view the said 2nd defendant cannot alone fight liability fully and properly on the face of the pleadings. It is to be noted too that in paragraph 6 of its defence statement, the 2nd Defendant has denied taking over all liabilities arising from the 1st Defendant’s negligent acts.

11. My view is that if the provisions of order 1 Rule 10(2) are rationally applied there is need for the continued joinder of the 1st Defendant to these proceedings not only as a necessary party but also as a proper party to the proceedings for a complete and final decision of the questions involved in this suit. The continued joinder of the 1st Defendant will not imperil the trial but will instead assist the court and the trial process.

12. Finally, I also find the application by the 1st defendant to have its name struck out misconceived as the ground on which the 1st Defendant seeks to be struck out is a matter of law between the 1st Defendant and the 2nd Defendant as to a promised indemnity between them. The proper course should have been for the 1st Defendant to either amend its defence and plead this point or for the 1st Defendant to take out a notice of claim against a co-defendant under the provisions of Order 1 Rule 24(1) (a) of the Civil Procedure Rules. The 1st Defendant has done neither.

13. For the foregoing reasons, without deciding the merits of the suit against the Defendants or merits of the alleged indemnity between the two defendants, I do not find that the 1st Defendant is improperly joined in this suit. I consequently dismiss the application dated 20th November, 2014 with costs to the Plaintiff.

14. I further direct that the parties proceed to take pre-trial directions on this relatively old case within the next sixty (60) days.

15. Orders accordingly.

Dated, signed and delivered at Nairobi this 28th day of November, 2014.

J. L. ONGUTO

JUDGE

In the presence of:-

....................................................... for the 1st Defendant

.......................................................for the 2nd Defendant

.......................................................for the Plaintiff