[2010] KEHC 2661 (KLR)
The court held that a plaintiff has the right to withdraw from a suit and cannot be compelled to remain a party against their will, regardless of the reasons for withdrawal. The court further determined that, given the allegation of forgery regarding the signature on the verifying affidavit, it was appropriate to...
Source-derived case information.
- Citation
- [2010] KEHC 2661 (KLR)
- Parties
- Plaintiff: Samuel Muiya Manyunza; Plaintiff: Jackson Munyao; Plaintiff: Mutuku Ngei Masaku; Plaintiff: Simon Musembi Bwika; Plaintiff: Matheka Mwaulu; Defendant: Co-operative Bank of Kenya Ltd; Defendant: Masaku Tobacco Wholesalers Ltd
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 76 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaintiff and for Investigation of Alleged Forgery
- Outcome
- Application allowed; 3rd Plaintiff struck off; investigation ordered.
- Judges
- I Lenaola, DW Mbuteti
- Legal Topics
- Joinder of Parties, Striking Out Party, Forgery in Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Muiya Manyunza
Plaintiff
Jackson Munyao
Plaintiff
Mutuku Ngei Masaku
Plaintiff
Simon Musembi Bwika
Plaintiff
Matheka Mwaulu
Plaintiff
Co-operative Bank of Kenya Ltd
Defendant
Masaku Tobacco Wholesalers Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaintiff and for Investigation of Alleged Forgery
Legal Issues
- 1 Whether the 3rd Plaintiff, Mutuku Ngei Masaku, should be struck off as a party to the suit upon his application.
- 2 Whether the court should order an investigation into the alleged forgery of the signature on the verifying affidavit.
Ratio Decidendi
The court held that a plaintiff has the right to withdraw from a suit and cannot be compelled to remain a party against their will, regardless of the reasons for withdrawal. The court further determined that, given the allegation of forgery regarding the signature on the verifying affidavit, it was appropriate to direct the Directorate of Criminal Investigations (DCIO) Machakos to investigate the matter and report to the court within 60 days. The court exercised its discretion under Order 1 Rule 2 of the Civil Procedure Rules to grant the application and make consequential orders for investigation, ensuring the integrity of court proceedings and upholding the applicant's rights.
Court Disposition
Application allowed; 3rd Plaintiff struck off; investigation ordered.
Orders
- The name of Mutuku Ngei Masaku is struck off the suit as plaintiff.
- The DCIO Machakos is directed to investigate the alleged forgery of the signature on the verifying affidavit and file a report in court within 60 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Case 76 of 2007
1. SAMUEL MUIYA MANYUNZA
2. JACKSON MUNYAO
3. MUTUKU NGEI MASAKU
4. SIMON MUSEMBI BWIKA
5. MATHEKA MWAULU...........................................................PLAINTIFFS
VERSUS
1. CO-OPERATIVE BANK OF KENYA LTD
2. MASAKU TOBACCO WHOLESALERS LTD..................DEFENDANTS
RULING
1. The 3rd Plaintiff in this suit, one Mutuku Ngei Masaku by his Application dated 6. 7.2009 seeks orders that his name be struck off the suit and that the police be called to investigate whether a signature appended to the Verifying Affidavit sworn on 18. 9.2007 is a forgery.
2. I have taken into account all the Affidavits on record and the submissions by advocates for the parties. The matter portends no difficulty. Order 1 Rule 2 of the Civil Procedure Rules provides as follows:-
“Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may either on the application of any party or of its own motion put the plaintiffs to their election or order separate trials or make such other orders as may be expedient.”
3. The 2nd Plaintiff has in pursuance of his right to opt out of the suit has asked that his name be struck off the suit. That is his right and he has elected to do so the reasons notwithstanding. Can this court tie him to the suit? It cannot and that is because to do so would amount to an injustice.
4. I will accede to his prayers and will order that his name be struck off the suit and since he has faulted the signature said to be his, then let the DCIO Machakos investigate the matter and file a report in this court within the next 60 days. Further orders will thereafter be made.
5. I shall make no order as to costs.
6. Orders accordingly.
ISAAC LENAOLA
JUDGE
Countersigned and delivered at Machakos this 12th day of March 2010.
H.P.G. WAWERU
JUDGE