[2024] KEHC 15220 (KLR)
The court found that the plaintiff's application to amend the plaint and join a second defendant was brought under the wrong legal provision. Order 8 Rule 3 (3) only permits correction of a party's name and does not authorize the addition of a new party. The proper procedure for joining a new party is under Order 1...
Source-derived case information.
- Citation
- [2024] KEHC 15220 (KLR)
- Parties
- Plaintiff: Nov Downhole Eurasia Limited; Defendant: Albert Njuguna alias Njuguna Kirubi t/a Arera Investiments
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Case E314 of 2022
- Procedural Posture
- Commercial Case / Ruling on Application to Amend Plaint and Join Second Defendant
- Outcome
- application dismissed
- Judges
- NW Sifuna
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Misjoinder and Nonjoinder, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nov Downhole Eurasia Limited
Plaintiff
Albert Njuguna alias Njuguna Kirubi t/a Arera Investiments
Defendant
Procedural Posture
Commercial Case / Ruling on Application to Amend Plaint and Join Second Defendant
Legal Issues
- 1 Whether the plaintiff can amend the plaint to introduce a second defendant under Order 8 Rule 3 (3) of the Civil Procedure Rules.
- 2 Whether the cited provision is the correct legal basis for the orders sought.
- 3 Whether the application is an attempt to introduce a new cause of action against a proposed party.
Ratio Decidendi
The court found that the plaintiff's application to amend the plaint and join a second defendant was brought under the wrong legal provision. Order 8 Rule 3 (3) only permits correction of a party's name and does not authorize the addition of a new party. The proper procedure for joining a new party is under Order 1 Rule 10 of the Civil Procedure Rules. The court held that invoking the wrong provision is not a mere technicality but a substantive defect, as the cited rule does not enable the relief sought. Consequently, the application was dismissed, but the plaintiff was granted liberty to bring a fresh application under the correct provision if still so minded, within seven days.
Court Disposition
application dismissed
Orders
- The plaintiff's application dated 6th August 2024 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Nov Downhole Eurasia Limited v Njuguna alias Njuguna Kirubi t/a Arera Investiments (Commercial Case E314 of 2022) [2024] KEHC 15220 (KLR) (Commercial and Tax) (21 November 2024) (Ruling)
Neutral citation: [2024] KEHC 15220 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts)
Commercial and Tax
Commercial Case E314 of 2022
NW Sifuna, J
November 21, 2024
Between
Nov Downhole Eurasia Limited
Plaintiff
and
Albert Njuguna alias Njuguna Kirubi t/a Arera Investiments
Defendant
Ruling
1. This ruling is on the Plaintiff’s Application dated 6th August 2024. The same which is supported by the Affidavit of Isaac Mwangi (Sworn on even date) seeks to amend the plaint herein, to introduce a second Defendant. The same which is based on the grounds in it has cited Order 8 Rule 3 (3) of the Civil Procedure Rules as the enabling provision of the law.
2. The Defendant has opposed it by way of the Replying Affidavit of its Albert Njuguna, sworn on 25th September 2024. The opposition being mainly on the ground that this Application not only seeks to join a party, but is also attempting to introduce another cause of action against the proposed party.
3. Further that this Application is a scheme to salvage the suit to cover up for a mistake in the framing of the suit. Also that there is no nexus between the current cause of action herein and the proposed party. Lastly that this Application is coming so late in the suit, and after the suit has been confirmed for hearing.
Determination 4. Order 8 Rule 3 (3) of the CPR is on amendment of pleadings, to correct the name of a party in the suit. It does not provide for addition of a new party. It states as follows:“An amendment to correct the name of a party may be allowed under Sub rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.”
5. From the facts as stated in the Supporting Affidavit and in the grounds of the Application, it is clear that the Application is not only invoking the wrong provisions of the law, but provisions that are contrary to the orders being sought.
6. The addition of a party to an existing suit is provided for by Order 1 Rule 10 and not Order 8 Rule 3 as attempted by this Application. I see no difficult in bringing an Application under an enabling provision of the law. Clearly, Order 8 Rule 3 (3) cannot be described as an enabling provision for the prayer sought in this Application.
7. That is for the reason that, that provision as worded, is not enabling of this prayer. I similarly do not see the wisdom in a party bringing an Application under a wrong provision or under a non-enabling provision.
8. For the aforegoing reasons, this Application is hereby declined and dismissed accordingly; although with no order as to costs. Let the Plaintiff bring an appropriate Application if still intent on joining another party to this suit.
9. Given that this suit had already been confirmed for hearing, if there is still need for such joinder, then the fresh Application be filed within 7 days from today.
DATED AND DELIVERED AT NAIROBI ON THIS 21STDAY OF NOVEMBER 2024. PROF (DR) NIXON SIFUNAJUDGE