[2002] KEHC 625 (KLR)
The court held that the objection raised by the defence was not sustainable as a preliminary point because the existence of a bona fide mistake in the naming of the plaintiff was a question of fact that was disputed and not agreed upon. The court further held that Order 1 rule 10 of the Civil Procedure Rules...
Source-derived case information.
- Citation
- [2002] KEHC 625 (KLR)
- Parties
- Plaintiff: Museto Women Group; Defendant: John Kasale Mutungu; Defendant: Joseph Kariuki Ngigi; Defendant: Olekejuado County Council; Defendant: Sarah Naisanya Mutungu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 877 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Amendment Application
- Outcome
- preliminary objection dismissed; application to amend to proceed to hearing
- Legal Topics
- Misjoinder of Parties, Amendment of Pleadings, Preliminary Objection, Bona Fide Mistake
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Museto Women Group
Plaintiff
John Kasale Mutungu
Defendant
Joseph Kariuki Ngigi
Defendant
Olekejuado County Council
Defendant
Sarah Naisanya Mutungu
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Amendment Application
Legal Issues
- 1 Whether a suit instituted in the name of a registered society rather than its officers is competent.
- 2 Whether the plaint can be amended to substitute the society with the names of its office-bearers.
- 3 Whether a preliminary objection can be sustained where facts are disputed.
Ratio Decidendi
The court held that the objection raised by the defence was not sustainable as a preliminary point because the existence of a bona fide mistake in the naming of the plaintiff was a question of fact that was disputed and not agreed upon. The court further held that Order 1 rule 10 of the Civil Procedure Rules empowers the court to substitute or add parties where a suit is instituted in the wrong name due to a bona fide mistake. Therefore, the application to amend the plaint to substitute the names of the officials for the group should be heard on its merits, and not dismissed at the preliminary stage. The preliminary objection was rejected, and the matter was directed to proceed for...
Court Disposition
preliminary objection dismissed; application to amend to proceed to hearing
Orders
- The preliminary objection is rejected.
- The application to amend the plaint is to be heard in substance.
Full Case Text
Judgment text and source record
23 paragraphs
IN THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO.877 OF 2002
MUSETO WOMEN GROUP …………………….PLAINTIFF
V E R S U S
JOHN KASALE MUTUNGU ……..……….1ST DEFENDANT
JOSEPH KARIUKI NGIGI ………………2ND DEFENDANT
OLEKEJUADO COUNTY COUNCIL …….3RD DEFENDANT
SARAH NAISANYA MUTUNGU ……….4TH DEFENDANT
R U L I N G
The single point for determination here is whether a suit started in the name of a registered Society and not in the name of its officers is competent and if not whether it can be amended to insert names of the office – bearers.
The plaintiff named in this suit is MUSETO WOMEN GROUP when this suit was filed on 9th July 2002 but later the same group made an application by way of Chamber Summons dated 4th July 2002 asking that under Orders 1 r10 and O.6A rr 3 & 5 and Section 3A of the Procedure Act to strike out the name of Museto Women Group and substitute it with the names of Sarah Mwangu, Esther Some and Bernadette Wathome, officials of the plaintiff Society.
In the plaint the plaintiff is referred to as a social welfare group, but the supporting affidavit of Sarah Mwangi says they thought it was a registered Company which of course is not reflected on the original pleadings.
Both Mr. Okeyo for 1st and 4th defendant and Mr. Maina for 2nd defendant have opposed this saying it is annulity from the beginning and cannot be amended.
Order 1 r10 of the Civil Procedure Rules allows the court to substitute plaintiff or added as a plaintiff where it was instituted in a wrong name of persons as plaintiff or whether it is doubtful if it has been instituted in the name of the correct plaintiff. The dominant point here is that where there is a bonafide mistake in describing a plaintiff the court should set it right. See Mulla on Code of Civil Procedure Volume II page 1008. “Bonafide” mean “good faith without fraud” and what constitutes it is a question of fact.
Defence counsel have raised this objection in limine as a matter of law but I think this is not correct. This matter cannot be argued unless the facts that establish bonafide mistake are stated and agreed.
A preliminary point cannot be resorted to unless the facts that form its basis are agreed upon and or are not disputable and besides what is asked for here is an exercise of discretion and these are not matters that are decided as preliminary points. I reject the preliminary point and direct that the application be heard in substance. A date be agreed on for hearing.
Cost to applicant.
A. I. HAYANGA
J U D G E
Read in Chambers on 13th November 2002 to Mr. Maina and Mrs Muchemi.
A. I. HAYANGA
J U D G E