[2011] KEHC 2663 (KLR)
The court found that the applicant had established sufficient grounds for the joinder of Masha Kai as a third party. The affidavit evidence demonstrated that the intended third party was directly involved in the transaction at the heart of the dispute and that the delay in processing the title deed, which forms the...
Source-derived case information.
- Citation
- [2011] KEHC 2663 (KLR)
- Parties
- Applicant: P.N. Mashru Ltd; Respondent: Danson Buya Mungatana t/a Mungatana & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 277 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder of Third Party
- Outcome
- application for joinder of third party granted
- Judges
- JB Ojwang
- Legal Topics
- Joinder of Parties, Third Party Proceedings, Professional Undertakings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P.N. Mashru Ltd
Applicant
Danson Buya Mungatana t/a Mungatana & Co. Advocates
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder of Third Party
Legal Issues
- 1 Whether the applicant should be granted leave to join Masha Kai as a third party to the suit.
- 2 Whether the intended third party is necessary for the fair and final determination of the dispute.
Ratio Decidendi
The court found that the applicant had established sufficient grounds for the joinder of Masha Kai as a third party. The affidavit evidence demonstrated that the intended third party was directly involved in the transaction at the heart of the dispute and that the delay in processing the title deed, which forms the basis of the plaintiff's claim, was attributable to the intended third party. The court held that it was only fair and just for Masha Kai to be joined in the proceedings to enable a comprehensive and final determination of the issues in the presence of all relevant parties. The absence of opposition from the respondent further supported the grant of the application....
Court Disposition
application for joinder of third party granted
Orders
- Leave is granted to the defendant/applicant to join Masha Kai as third party to the suit.
- The said third party shall enter appearance within 21 days of being served with these Orders.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
(Coram: Ojwang, J.)
MISC. CIVIL APPLICATION NO. 277 OF 2009 (OS)
IN THE MATTER OF:COOTOW & ASSOCIATES, ADVOCATES
-AND-
IN THE MATTER OF:ENFORCEMENT OF A PROFESSIONAL UNDERTAKING ISSUED BY
DANSON BUYA MUNGATANA t/a MUNGATANA & CO. ADVOCATES
-AND-
IN THE MATTER OF:ORDER XXXVI, CIVIL PROCEDURE RULES & ORDER L, RULE 7, CIVIL PROCEDURE RULES
-BETWEEN-
P.N. MASHRU LTD................................................................................................................APPLICANT/DEFENDANT
-AND-
DANSON BUYA MUNGATANAt/a MUNGATANA & CO. ADVOCATES.........................PLAINTIFF/RESPONDENT
RULING
The applicant moved the Court by Chamber Summons dated 17th September, 2009 and brought under s. 3A of the Civil Procedure Act (Cap. 21, Laws of Kenya) and Order I, Rule 14 of the Civil Procedure Rules.
The main prayer in the application is that:
“the Court be pleased to grant leave to the respondent to join Masha Kaias third party to this suit.”
In the event this prayer is granted, the applicant asks that the proposed third party be required to enter appearance within 21 days of being served.
The application rests on two grounds:
(i)the defendant claims contribution and/or liability against the intended third party;
(ii)the intended third party is solely to blame for the injury in respect of which the plaintiff is claiming.
The evidentiary basis of the application is in the supporting affidavit of Danson Buya Mungatanasworn on 17th September, 2009. the deponent deposes that he works as an Advocate with the plaintiff firm; that delay in processing the title deed is attributable solely to the proposed third party; that the proposed third party is a party to the relevant transaction, within the knowledge and consent of the applicant; that Masha Kaiis the intended third party and it is “only fair that he be joined in this suit, to explain the circumstances and occurrence of … delay …”; that it is fair that Masha Kaibe joined in the suit, to enable the Court to “make a fair and final judgment in the presence of all the parties concerned.”
When this matter came up before me on 17th June, 2010 learned counsel, Mr. Wanyonyirepresented the applicant, while learned counsel, Mr. Njorogerepresented the respondent; and on that occasion, directions were given for a hearing. Subsequently (on 24th June, 2010), the parties took 26th July, 2010as hearing date; but on that occasion, the applicant was represented by Mr. Weloba, holding brief for Mr. Wanyonyi, while the respondent was unrepresented. I gave the direction, on that occasion, that a Ruling would be given on the basis of affidavit evidence.
Now on the basis of the affidavit on file, which I have accorded due consideration, I will make Orders as follows:
(1)I hereby grant leave to the defendant/applicant to join Masha Kaias third party to the suit.
(2)The said third party shall enter appearance within 21 days of being served with these Orders.
(3)Costs shall be in the cause.
DATEDandDELIVEREDat MOMBASAthis20thday ofMay, 2011.
...........................
J. B. OJWANG
JUDGE