[2023] KEHC 23905 (KLR)

National Bank of Kenya v Akotsi (Civil Appeal 23 of 2019) [2023] KEHC 23905 (KLR) (19 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23905 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 23 of 2019

PM Mulwa, J

October 19, 2023

Between

National Bank Of Kenya

Appellant

and

Milton Okwado Akotsi

Respondent

Ruling

1. The appellant, National Bank of Kenya who was the defendant in Thika Chief Magistrate Court Civil Case No. 357 of 2011 was sued for breach of contract and trust by the plaintiff.

2. By way of Chamber Summons dated 24th August 2011, the appellant applied under Order I rule 15 of the Civil Procedure Rules asking for leave to issue third party notice against Jomo Kenyatta University of Agriculture and Technology claiming against them “full indemnity or in the alternative, contribution in respect of the plaintiff’s claim against it”.

3. Jomo Kenyatta University of Agriculture and Technology did not respond to the third-party notice by the appellant and therefore never participated in the proceedings in the lower court to defend itself.

4. The matter proceeded to a full trial and the trial magistrate found the appellant in breach of its contract with the plaintiff. The appellant was held liable for the breach of contract and a judgment for damages with costs was entered in favor of the plaintiff.

5. The appellant was aggrieved by the said judgment. In the Memorandum of Appeal dated 28th January 2019, the appellant raised 7 grounds of appeal.

6. On 14th July 2022, the appellant filed an application seeking leave to join Jomo Kenyatta University of Agriculture and Technology as the 2nd Respondent to the current proceedings.

7. The application is based on the grounds set out on the face of the Notice of Motion dated 14th July 2022 and is further supported by the affidavit of Chrispus Maithya sworn on even date.

8. The application is opposed by the respondent through grounds of opposition dated 29th July 2022.

9. The application was canvassed by way of written submissions. The parties filed their respective written submissions on 17th April 2023 and 16th May 2023 respectively.

10. The court has considered the material canvassed in respect of the motion and perused the parties’ respective pleadings and material on record.

11. The substitution and addition of parties to a suit is governed by Order 1 Rule 10 (2) of the Civil Procedure Rules which provides;“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

12. The above provision suggest that parties may be joined to proceedings at any stage of the proceedings. It is this court’s considered view however, that Order 1 Rule 10(2) of the Civil Procedure Rules envisages joinder where a suit is yet to be heard fully and determined on merit.

13. In the case of Absolom Opini Mekenye vs James Obegi [2018] eKLR, the court held that;“Order 1 rule 10 (2) in my view envisages a situation where the suit has not been heard and determined and that is why it provides for joinder of a party either as plaintiff or defendant or a party whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit. Where a judgment has been entered it is my considered opinion that a party cannot be enjoined to the proceedings unless the judgment is either reviewed and/or set aside in a manner to accommodate the participation of the enjoined party.”

14. Further, the Court of Appeal in the case of JMK vs MWM & Another [2015] eKLR while considering the application under Order 1 rule 10(2) of the Civil Procedure Rules, the court stated thus:“We would however agree with the respondent that Order 1 rule 10(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the court. Sarkar’s Code [supra] quoting authority, decisions of Indian courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings. In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 rule 10(2) of Civil Procedure Rules in Tanga Gas Distributors Ltd v Said & others [2014] EA 448 stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable…”

15. The said application was premised on the grounds that the intended 2nd respondent is a necessary party to these proceedings as its participation will be effectual in determining the appeal.

16. However, in the present situation, it is my considered view that the participation of the intended 2nd respondent in these proceedings will not assist the court in determining the matters herein considering that the cause of action of the appeal between the appellant and the respondent was based on a contract, thus the doctrine of privity of contract excludes Jomo Kenyatta University of Agriculture and Technology from having any burden under that contract that can be enforced against it.

17. Accordingly, it would not be a proper exercise of my discretion to allow this application. For these reasons, I dismiss the Notice of Motion dated 14th July 2022. The costs thereof shall abide the outcome of the appeal.

RULING DELIVERED VIRTUALLY, SIGNED AND DATED AT KIAMBU THIS 19TH DAY OF OCTOBER 2023……………………………………………P. MULWAJUDGEIn the presence of:Duale – court assistantMs. Wetunga h/b for Mr. Rotich - for the appellantMr. Akotsi h/b for Mr. Okwaro - for the respondent