[2009] KEHC 1040 (KLR)
The court held that the preliminary objection raised by the defendant was based solely on the nomenclature used in naming the defendant, rather than on any substantive defect in the claim. The court observed that the defendant itself referred to itself as 'Mavoko Municipal Council' in its own official documents and...
Source-derived case information.
- Citation
- [2009] KEHC 1040 (KLR)
- Parties
- Applicant: Peter Alwanga Inyangala; Applicant: Jackson Kaminda Munyao; Applicant: Fatuma Jackson Munyao; Applicant: Patrick Muli Mwaniki; Applicant: Mueni Maingi Vutu; Applicant: Kenfros Enterprises Limited; Applicant: Athi River Medical Services Ltd.; Applicant: Dorcas Yego; Applicant: Aaron Kutikhulu; Applicant: Martin Mbao; Applicant: Irungu Maina; Respondent: Mavoko Municipal Council
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 167 of 2009
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary_objection_overruled
- Judges
- I Lenaola
- Legal Topics
- Misjoinder of Parties, Nomenclature of Parties, Preliminary Objection, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Alwanga Inyangala
Applicant
Jackson Kaminda Munyao
Applicant
Fatuma Jackson Munyao
Applicant
Patrick Muli Mwaniki
Applicant
Mueni Maingi Vutu
Applicant
Kenfros Enterprises Limited
Applicant
Athi River Medical Services Ltd.
Applicant
Dorcas Yego
Applicant
Aaron Kutikhulu
Applicant
Martin Mbao
Applicant
Irungu Maina
Applicant
Mavoko Municipal Council
Respondent
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit should be struck out for suing the defendant under the wrong name.
- 2 Whether the error in the defendant's name is curable by amendment.
Ratio Decidendi
The court held that the preliminary objection raised by the defendant was based solely on the nomenclature used in naming the defendant, rather than on any substantive defect in the claim. The court observed that the defendant itself referred to itself as 'Mavoko Municipal Council' in its own official documents and correspondence, despite the statutory designation under Section 12(3) of the Local Government Act. The judge distinguished prior decisions that had struck out suits for misnaming, and instead found that the error in this case was not fatal and could be cured by amendment. The preliminary objection did not go to the root of the claim, and therefore the objection was overruled....
Court Disposition
preliminary_objection_overruled
Orders
- The preliminary objection is overruled.
- The plaintiff is at liberty to amend its plaint to reflect the correct name of the defendant.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
Civil Case 167 of 2009
PETER ALWANGA INYANGALA ……………….. … 1ST PLAINTIFF/APPLICANT
JACKSON KAMINDA MUNYAO …………………… 2ND PLAINTIFF/APPLICANT
FATUMA JACKSON MUNYAO ……………………. 3RD PLAINTIFF/APPLICANT
PATRICK MULI MWANIKI ……………...…………… 4TH PLAINTIFF/APPLICANT
MUENI MAINGI VUTU …………………..…………… 5TH PLAINTIFF/APPLICANT
KENFROS ENTERPRISES LIMITED ….......………… 6TH PLAINTIFF/APPLICANT
ATHI RIVER MEDICAL SERVICES LTD. .….........….. 7TH PLAINTIFF/APPLICANT
DORCAS YEGO ……………………..………………… 8TH PLAINTIFF/APPLICANT
AARON KUTIKHULU …………………....……………. 9TH PLAINTIFF/APPLICANT
MARTIN MBAO ……………………………………… 10TH PLAINTIFF/APPLICANT
IRUNGU MAINA ……………………….…………….. 11TH PLAINTIFF/APPLICANT
VERSUS
MAVOKO MUNICIPAL COUNCIL ………………….. DEFENDANT/RESPONDENT
RULING ON A PRELIMINARY OBJECTION
1. The Preliminary Objection before me is straight-forward; that the Defendant is sued in the wrong-name because under Section 12 of the Local Government Act it should have been sued as “Municipal Council of Mavoko”. That therefore the suit should be struck off.
2. The issue, I am aware, has elicited different decisions of the High Court. I refer for example to the decision of Mwera J in a case involving the City Council of Nairobi.
3. In that decision, Mwera J took the view that where the City Council of Nairobi was sued as “Nairobi City Council”, the error was one of law and there being no such party under Section 12 (3) aforesaid, then the suit was rendered incurably defective.
4. In a recent decision involving the Town Council of Wote, I declined to strike out the Council’s name because I take the view that in this case the error is curable by amendment.
5. I have seen minutes of the council exhibited on record in this case and it refers to itself as “Mavoko Municipal Council”, the allegedly offending name! In letters regarding the suit land, it refers to itself by the same name inspite of Section 12 (3) aforesaid.
6. I take the view that a Preliminary Objection must go to the root of the claim and what is before me is nomenclature and not substance. The objection is overruled but the Plaintiff is at liberty to amend its Plaint.
7. No order as to costs.
8. Orders accordingly.
Dated and delivered at Machakos this 13th day of October 2009.
ISAAC LENAOLA
JUDGE
In presence of: Mr Kamanda h/b for Mr Kahonge for Respondent N/A for Plaintiff
ISAAC LENAOLA
JUDGE