[2002] KEHC 617 (KLR)
The court found that the plaint clearly disclosed that the second plaintiff was acting solely as an agent for the first plaintiff and that any recovery for loss should be sought from the principal under the agency agreement. Based on established legal principles, an agent who contracts as such cannot personally sue...
Source-derived case information.
- Citation
- [2002] KEHC 617 (KLR)
- Parties
- Plaintiff: Omar Mohsin; Plaintiff: Al-Amary Limited; Defendant: Mackenzi Maritime Holding Ltd.; Defendant: Kenya Ports Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 10 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Suit
- Outcome
- Application allowed. Suit by second plaintiff against first defendant struck out with costs.
- Legal Topics
- Agency Relationships, Striking Out Pleadings, Cause of Action, Principal Agent Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Mohsin
Plaintiff
Al-Amary Limited
Plaintiff
Mackenzi Maritime Holding Ltd.
Defendant
Kenya Ports Authority
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether an agent and principal can sue together on the same cause of action against the same defendant.
- 2 Whether the second plaintiff (agent) has disclosed a reasonable cause of action against the first defendant.
Ratio Decidendi
The court found that the plaint clearly disclosed that the second plaintiff was acting solely as an agent for the first plaintiff and that any recovery for loss should be sought from the principal under the agency agreement. Based on established legal principles, an agent who contracts as such cannot personally sue on the contract. Therefore, the second plaintiff had no reasonable cause of action against the first defendant, and the application to strike out the suit as against the second plaintiff was allowed with costs.
Court Disposition
Application allowed. Suit by second plaintiff against first defendant struck out with costs.
Orders
- The suit of the second plaintiff against the first defendant is struck out.
- Costs awarded to the first defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO.10 OF 2002
OMAR MOHSIN …………………………………………. 1ST PLAINTIFF
AL-AMARY LIMITED …………………………………... 2ND PLAINTIFF
VERSUS
MACKENZI MARITIME HOLDING LTD. …………… 1ST DEFENDANT
KENYA PORTS AUTHORITY ………..……………… 2ND DEFENDANT
R U L I N G
In the plaint filed against the two Defendants it is disclosed that the First Plaintiff is a male adult residing and working for gain in the Republic of Tanzania. It is also disclosed that the second Plaintiff a company incorporated under the Laws of Kenya, was mandated by first Plaintiff to clear and pay all duties regarding a consignment on behalf of the first Plaintiff at Kilindi harbour.
The first Defendant have applied that the suit of second Plaintiff be struck of on the ground that no reasonable cause of action is disclosed against the first Defendant. The Respondent pleads that agent and principal cannot sue together on the same cause of action and the plaint does not disclose what loss or damage the second Plaintiff has suffered.. No grounds were set out in the application. This offends Order L rule 3. Under Order VI rule 13 1(a) idence is permitted and I find grounds expressly stated on the application. The counsel for Applicant asked the court to examine the plaint and see no cause of action disclosed against first Defendant. He quoted“Bullen & Leake page 66” where it is said “an agent who contracts expressly as such cannot personally sue on the contract “. He also quoted Halsbury Laws of England page 521 which sets out the same principle. The application is opposed by counsel for the Plaintiffs; that it does not fall under Order 6 131(a) and therefore evidence should be produced and that the second Plaintiff has disclosed the loss he stands to lose.
It is my view that the plaint discloses clearly that the second plaintiff is only agent for his principal from whom he should recover under the agency agreement. In the circumstances and in view of the authorities cited I find that the 2nd Plaintiff has no cause of action against the first Defendant and the application is hereby allowed as prayed with costs.
Dated at Mombasa this 3rd Day of May, 2002.
J. KHAMINWA
COMMISSIONER OF ASSIZE
Read in presence of Mr. V. Omollo and Mr. Oyoo.
J. KHAMINWA
COMMISSIONER OF ASSIZE