[2023] KEHC 22521 (KLR)

Owuoti & 4 others v Mohamed & another (Civil Appeal E151 of 2021) [2023] KEHC 22521 (KLR) (21 September 2023) (Judgment)

Neutral citation: [2023] KEHC 22521 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E151 of 2021

TW Cherere, J

September 21, 2023

Between

Mike Ochieng Owuoti

1st Appellant

Peter Mwathi

2nd Appellant

James Ngigi Muthami

3rd Appellant

Samuel Kanyua Njun’ge

4th Appellant

Eric Kirimi

5th Appellant

and

Hassan Kalla Mohamed

1st Respondent

Arid Lands Construction Co. Ltd

2nd Respondent

(An Appeal from ruling and order in Isiolo CMCC No. E001 of 2020 by Hon.E. Ngigi (PM) on 28th September, 2021)

Judgment

1. By plaint filed 23rd September, 2020, Appellants sought for judgment as against the 1st Respondent for KES. 3,440,000/- plus costs and interest.

2. By his defence filed on 09th October, 2020, 1st Respondent pleaded that he was acting as a messenger for the 2nd Respondent. Subsequently by a notice of motion dated 27th November, 2020, 1st Respondent prayed that his name be struck out from the proceedings and the same be substituted with that of the 2nd Respondent.

3. After hearing both the Appellants and first Respondent, the trial magistrate by a ruling dated 28th September, 2020 allowed the striking out of 1st Respondent’s name from the proceedings and ordered that the same be substituted with that of the 2nd Respondent.

4. Appellants were gravely aggrieved and faulted the trial magistrate for among other grounds pre-empting the merits of the Appellants' case thereby denying the Appellants an opportunity to prosecute their suit.

5. On the other, 1st Respondent whilst conceding that he signed the contract that is the subject matter of the suit submitted that the responsibilities had been taken over by the 2nd Respondent in subsequent correspondences.

6. The appeal was argued by way of submissions. It is the Appellants’ case that the dispute arose out of a contract signed by the 1st Respondent and that he was therefore a necessary party to the suit.

Analysis and Determination 7. I have considered the appeal in the light of the trial court record, submissions for both parties and cited authorities. This being a first appeal, 1 am reminded of my primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. (See Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR).

8. The law on joining of parties is entrenched under Order 1 Rule 10(2) which provides that,“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”.

9. This order requires the Court evaluates the importance of such a party to the suit and their relevance to the just determination of the suit. The provisions were echoed by the and was quoted by the Court of Appeal in JMK v MWM & another [2015] eKLR when it quoted Court of Appeal of Tanzania in Tang Gas Distributors Ltd v. Said & Others [2014] EA 448 that:“the power to add a party 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 the 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; and that a party can even be added at the appellate stage”.

10. In Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR, the court enumerated four aspects to consider before joining a party to a suit to wit:a.Is a necessary party;b.A proper party;c.There is a relief flowing from him to the plaintiff;d.The ultimate order or decree cannot be enforced without his participation in the proceedings.

11. Similarly, in Julius Meme v Republic & another [2004] eKLR, the court considered the principles for joinder of parties in Constitutional reference and held that a party is added to a suit where:a.Where his presence will result in the complete settlement of all the questions involved in the proceedings;b.To provide protection for the rights of a party who would otherwise be adversely affected in law;c.Joinder should not be disallowed where it seeks to preempt a likely course of proliferated litigation

12. In considering this judgment, I will deal with two main issues. The first one though not raised by the parties is pertinent for the reason that there is no evidence that the 2nd Respondent was served with the application to include its name as the Defendant and was in the circumstances therefore not afforded an opportunity to be heard in the proceedings on whether or not it should be joined to the suit in place of the 1st Respondent.

13. In Onyango v. Attorney General (1986-1989) EA 456, Nyarangi, JA asserted at page 459:“I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.”At page 460 the learned judge added:“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”

14. And in Mbaki & Others v. Macharia & another (2005) 2 EA 206, at page 210, this Court stated as follows:“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

15. After considering all the material that was availed to the trial court and the fact that 2nd Respondent was not heard before the impugned orders were issued, I find that the impugned order was a blatant violation of natural justice and in particular the audi alteram partem principle, which demands that no person should be condemned unheard. Whereas the 2nd Respondent has not challenged its joinder as a party, this court would fail in its duty to do justice if it allowed the 2nd Respondent to be added to a suit without affording it an opportunity to be heard on whether or not it is a necessary party.

16. Further to the foregoing, it is apparent from the pleadings that 1st Respondent does not deny signing the contract forming the subject matter of the case but only pleaded that he was an agent of the 2nd Respondent.

17. Whether or not the 1st Respondent was an agent of the 2nd Respondent and whether or not the 2nd Respondent had taken the responsibilities of the 1st Respondent under the contract between him and the Appellants was a triable issue that ought to have gone for trial.

18. By striking out the name of 1st Respondent which was one of the contracting parties, the trial court fell into error in pre-empting Appellant’s claim against the 1st Respondent and determining the Appellant’s claim at an interlocutory stage.

19. From the foregoing analysis, I find that this appeal has merit and it is allowed in the following terms:1)The ruling and order dated 28th September, 2021 striking out the name of the 1st Respondent from the proceedings is set aside in its entirety and substituted with and order dismissing the chamber summons dated 27th November, 2020 that was filed on 30th November, 20202)1st Respondent is condemned to pay the costs of the chamber summons dated 27th November, 2020 and filed on 30th November, 2020 and costs of this appeal.3)The suit shall be remitted to Isiolo Chief Magistrate’s Court for hearing by another magistrate other that Hon. E. Ngigi

DATED AT MERU THIS 21ST DAY OF SEPTEMBER 2023T.W. CHEREREJUDGEAppearances:Court Assistant - Morris KinotFor Appellants - Mr. Muriira for Kiogora Mugambi & Co. AdvocatesFor 1st Respondent - Mr. Kitheka for Kitheka & Ouma Advocates LLPFor 2nd Respondent - N/A