[2007] KEHC 1582 (KLR)
The court held that the applicants' claim as beneficiaries of a Wakf, while uncontested due to lack of a replying affidavit, is not properly before the court in the current suit by plaint. The appropriate procedure for such a claim is by originating summons under Order XXXVI of the Civil Procedure Rules....
Source-derived case information.
- Citation
- [2007] KEHC 1582 (KLR)
- Parties
- Plaintiff: Rehmat Esmail Khamis; Defendant: Yusuf Musa Khamisa; Defendant: Zainab Musa Khamisa; Applicant: Sadik Esmail Khamisa; Applicant: Ahmed Esmail Khamisa; Applicant: Abdulhamid Esmail Khamisa; Applicant: Kulsum Esmail Khamisa; Applicant: Zubeda Esmail Khamisa; Applicant: Maimoona Esmail Khamisa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 263 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application to Be Joined as Plaintiffs
- Outcome
- application dismissed
- Legal Topics
- Joinder of Parties, Wakf Beneficiaries, Mandatory Injunction, Amendment of Plaint, Originating Summons, Delay of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rehmat Esmail Khamis
Plaintiff
Yusuf Musa Khamisa
Defendant
Zainab Musa Khamisa
Defendant
Sadik Esmail Khamisa
Applicant
Ahmed Esmail Khamisa
Applicant
Abdulhamid Esmail Khamisa
Applicant
Kulsum Esmail Khamisa
Applicant
Zubeda Esmail Khamisa
Applicant
Maimoona Esmail Khamisa
Applicant
Procedural Posture
Civil Suit / Ruling on Application to Be Joined as Plaintiffs
Legal Issues
- 1 Whether the applicants should be joined as plaintiffs in the suit as beneficiaries of a Wakf.
- 2 Whether the applicants' claim can be properly agitated in the current suit by plaint or only by originating summons under Order XXXVI of the Civil Procedure Rules.
- 3 Whether the joinder of the applicants would delay or prejudice the determination of the suit.
Ratio Decidendi
The court held that the applicants' claim as beneficiaries of a Wakf, while uncontested due to lack of a replying affidavit, is not properly before the court in the current suit by plaint. The appropriate procedure for such a claim is by originating summons under Order XXXVI of the Civil Procedure Rules. Furthermore, the applicants' joinder would necessitate amendment of the plaint and further delay the already pending matter, and there is no nexus between the applicants' claim and the relief sought in the plaint. Therefore, the application to be joined as plaintiffs is incompetent and without merit and must be struck out and dismissed with costs to the defendants.
Court Disposition
application dismissed
Orders
- The summons dated 5/8/2004 is struck out and dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT 263 OF 2003
REHMAT ESMAIL KHAMIS……………...……………….PLAINTIFF
VERSUS
1. YUSUF MUSA KHAMISA……………………..1ST DEFENDANT
2. ZAINAB MUSA KHAMISA………….…………2ND DEFENDANT
R U L I N G
In a summons dated 5. 8.2004, Sadik Esmail Khamisa, Ahmed Esmail Khamisa, Abdulhamid Esmail Khamisa, Kulsum Esmail Khamisa, zubeda Esmail Khamisa and Maimoona Esmail Khamisa applied to be joined as plaintiffs to this suit. These applicants filed a joint affidavit they swore on 5th August 2004 to support the application.
When served with the summons, the defendants herein Yusuf Musa Khamisa and Zainab Musa Khamisa resisted the same by filing grounds of opposition.
Let me start by stating that the only way facts deponed in an affidavit can only be discounted or disputed or controverted by filing a replying affidavit. In this matter, the defendants have filed grounds of opposition to dispute facts averred under oath. That in my view does not answer the facts deponed on affidavit. Consequently, I will consider the facts deponed in the applicants’ joint affidavit of 5. 8.2004 to be uncontested hence the gospel truth. In that affidavit, the applicants claim that they are entitled to claim and share plots Nos.243 and 293 by virtue of Wakfs created and executed by Mohamed Khamisa, Haji Saleh Essak and Hajarabai Khamisa on 14th February 1942. the applicants have accused the defendants unlawfully and fraudulently excluding them from getting their rightful shares or benefit therefrom. They now seek to be joined as plaintiffs in this suit so that they can prove their claim.
The defendants on their part are of the view that the applicants have not shown that there existed a wakf in which they are beneficiaries. It is further the submission of the defendants’ counsel that the applicants’ claim can only be agitated under order XXXVI of the Civil Procedure Rules and not through this a plaint like in this case. The defendants are of the view that the applicants’ entry to the suit will further delay the hearing and final determination of the case.
It is trite law that the purpose of either adding or substituting parties to a suit is geared towards enabling the court effectually and completely adjudicate upon and settle all questions involved in the dispute. In the instant application the applicants’ claim is said to be that of beneficiaries. They want to be added to this suit as plaintiffs so that they can seek to be given their rightful or benefit.
However, the suit before this court is by way of a plaint in which the main prayer is framed as follows:
“A mandatory injunction to issue and require the defendant herein, its agents and or servants acting on their behalf to unconditionally and forthwith remove and or demolish the barriers/walls erected on the stairs leading to the first and bathrooms of the building standing on plot No.243 XVIII/M.I. at Mwembe Tayari.”
It is quite apparent that the applicants’ presence will necessitate the amendment of the plaint to accommodate their claim. This will obviously delay the matter which has been pending for long. I agree with the submissions of Mrs. Moolraj – for the defendants that there is no nexus between the applicants’ claim and that which is now being sought in the plaint.
I have already said that I am in agreement that in the absence of any evidence in form of a replying affidavit to discount the applicants’ averments under oath, I am of the view that the applicants’ interest beneficiaries of a Wakf may exist. Again I agree with the submissions of Mrs. Mooraj learned advocate for the defendants that the applicants can only press for their rights under Order XXXVI of the Civil Procedure rules, which is by way of an Originating summons as opposed to a plaint.
In the end the summons dated 5/8/2004 is incompetent and with no merit. Consequently, the same is struck out and dismissed with costs to the defendants.
Dated and delivered at Mombasa this 12th day of February 2007.
J.K. SERGON
J U D G E
In open court in the presence of Miss Jadeed h/b Kasman for the applicant.
N/A for Respondent.