[2006] KEHC 2630 (KLR)
The court held that the plaintiffs have the right to choose whom to sue and cannot be compelled to include a party as a defendant against their will. The applicant, although claiming an interest in the suit property, does not have an automatic right to be joined as a defendant. If the applicant believes her...
Source-derived case information.
- Citation
- [2006] KEHC 2630 (KLR)
- Parties
- Plaintiff: Peter Maina Kingori; Plaintiff: Charles Mwangi Kingori; Defendant: City Council of Nairobi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1026 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Joinder of Second Defendant
- Outcome
- Application for joinder as second defendant dismissed with costs.
- Judges
- JL Osiemo
- Legal Topics
- Joinder of Parties, Interested Party Status, Injunctions, Return of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Maina Kingori
Plaintiff
Charles Mwangi Kingori
Plaintiff
City Council of Nairobi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Joinder of Second Defendant
Legal Issues
- 1 Whether the applicant should be joined as a second defendant in the suit.
- 2 Whether a plaintiff can be compelled to sue a party against his will.
- 3 Whether the applicant's interest in the suit property justifies joinder as a defendant.
Ratio Decidendi
The court held that the plaintiffs have the right to choose whom to sue and cannot be compelled to include a party as a defendant against their will. The applicant, although claiming an interest in the suit property, does not have an automatic right to be joined as a defendant. If the applicant believes her interests may be affected by the outcome of the suit, the appropriate course is to seek joinder as an Interested Party, not as a defendant. The application for joinder as a second defendant therefore lacks merit and is dismissed with costs to the plaintiffs.
Court Disposition
Application for joinder as second defendant dismissed with costs.
Orders
- The application to join the applicant as a second defendant is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1026 of 2005
PETER MAINA KINGORI …………………………….………….1ST PLAINTIFF
CHARLES MWANGI KINGORI……………………………………2ND PLAINTIFF
VERSUS
CITY COUNCIL OF NAIROBI………………………..…………..…DEFENDANT
RULING
The plaintiffs filed this suit against the defendant seeking judgment for:
(a) Damages
(b) An injunction to compel the defendant to deliver back to the plaintiffs all iron sheets and poles seized from the suit premises LR NO.24899. They also sought costs of the suit.
On 5th September 2005 the applicant brought this application by way of Chamber Summons seeking orders that she be joined as a second defendant. The application is based on the ground that she is the registered owner of the suit land LR NO. 209/12757 to which the applicant’s claim has another title namely LR NO.209/24899 and LR NO.209/24900 that the applicant has an interest in the suit land, that the applicants presence as a second defendant is necessary to enable the court effectively and completely adjudicate upon and determine all the real issues raised in this matter. The application is opposed by the plaintiffs who have filed a replying affidavit.
Mr. Kihonge counsel for the plaintiffs submits that a party has a right to chose his adversary and cannot be compelled to sue a party against his will. The dispute in this suit is essentially between the plaintiffs and the defendant, the Nairobi City Council to return materials it had carried away. Further counsel argues that if the proposed 2nd defendant is enjoined to the suit, she will be a defendant with conflicting interest.
I agree with counsel for the plaintiffs that one cannot be compelled to sue a party which he does not intend to sue. The proposed 2nd defendant if she feels that the outcome of the present suit will affect her interest in the suit property if any, she would probably apply to be joined as an Interested Party.
For the above reasons, I agree with counsel for the plaintiffs that the proposed second defendants application lacks in merit and the same is dismissed with costs.
Dated and delivered at Nairobi this 29th day of March 2006.
J.L.A. OSIEMO
JUDGE