[2021] KEELC 267 (KLR)
The court held that when a party applies for the joinder of another party, it is incumbent upon the applicant to specify the capacity in which the new party is to be joined, as the applicant is best placed to know the claim or relief sought against the new party. The court cannot make this determination on behalf of...
Source-derived case information.
- Citation
- [2021] KEELC 267 (KLR)
- Parties
- Plaintiff: Municipal Council of Bungoma; Defendant: Kenya National Trading Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 120 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder and Setting Aside of Consent Order
- Outcome
- Consent order for joinder set aside; liberty to file fresh application granted.
- Legal Topics
- Joinder of Parties, Consent Orders, Capacity of Parties, Directions in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Municipal Council of Bungoma
Plaintiff
Kenya National Trading Corporation
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder and Setting Aside of Consent Order
Legal Issues
- 1 Whether the court can enjoin a party to proceedings without the applicant specifying the capacity in which the party is to be joined.
- 2 Whether the consent order allowing joinder without specifying capacity should be set aside.
- 3 Whether directions can be taken before the new party is properly joined.
Ratio Decidendi
The court held that when a party applies for the joinder of another party, it is incumbent upon the applicant to specify the capacity in which the new party is to be joined, as the applicant is best placed to know the claim or relief sought against the new party. The court cannot make this determination on behalf of the applicant. Since the defendant failed to specify the capacity in which KAKIS PROPERTIES LTD was to be enjoined, the consent order allowing the joinder was irregular. Furthermore, the court found that it was premature to take directions before the new party was properly joined. Consequently, the consent order dated 12th October 2021 was set aside suo moto, and the defendant...
Court Disposition
Consent order for joinder set aside; liberty to file fresh application granted.
Orders
- The consent order dated 12th October 2021 allowing the application dated 21st June 2021 is set aside suo moto.
- The defendant may file a fresh application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT BUNGOMA
ELC CASE NO. 120 OF 2011
(Formerly BUSIA HCCC No. 11 OF 2011)
MUNICIPAL COUNCIL OF BUNGOMA.....................................................................PLAINTIFF
VERSUS
KENYA NATIONAL TRADING CORPORATION.................................................DEFENDANT
R U L I N G
By an application dated 21st June 2021, Counsel for the defendant sought an order to enjoin KAKIS PROPERTIES LTD “as a party to this suit.” The defendant did not however indicate in what capacity they wanted the said KAKIS PROPERTIES LTD to be enjoined in this suit.
A consent order was however recorded on 12th October 2021 before the Deputy Registrar allowing that application. In the supporting affidavit of Counsel for the defendant MR MAINA NYABUTI dated 21st June 2021, it is indicated that the Court should determine the capacity in which the said KAKIS PROPERTIES LTDshould be enjoined.
Whereas the Court has powers under Order 1 Rule 10(2) of the Civil Procedure Rulesto order the joinder of a party on its own motion, in a situation such as this where one party moves the Court for joinder, it is really for the party moving the Court to determine in what capacity the party is to be enjoined in any proceedings. This is because, it is the party moving the Court who knows why he requires the new party to be enjoined and what claim he seeks against the new party. The Court cannot make that decision on behalf of the party making the application for joinder.
Secondly, the listing of this matter today for directions is pre – mature. Directions can only be taken once the new party has been joined in the proceedings.
In the circumstances, the consent order dated 12th October 2021 allowing the application dated 21st June 2021 is hereby set aside suo moto.
The defendant may file a fresh application.
BOAZ N. OLAO.
J U D G E
6TH DECEMBER 2021.
RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 6TH DAY OF DECEMBER 2021.
Mr Murunga for plaintiff – present
Mr Maina for defendant – present
Court Assistant - Joy – present
BOAZ N. OLAO.
J U D G E
6TH DECEMBER 2021.