[2009] KEHC 4230 (KLR)
The court found that the 4th and 5th defendants were properly joined as parties representing the estate of the deceased, Boniface Anderson Ngosia, pursuant to an appointment from the Succession Division of the High Court. The court held that in such circumstances, no leave is required for their joinder, only...
Source-derived case information.
- Citation
- [2009] KEHC 4230 (KLR)
- Parties
- Plaintiff: Samuel Mwamba Ambundo & 327 Others; Defendant: Spell Investment Co. Ltd.; Defendant: Consolata Nabwire Asembo; Defendant: Consolidated Bank of Africa; Defendant: Francisca Adikinyi Asembo; Defendant: Robert Akumu Asembo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 416 of 2008
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Joinder of Parties, Substitution of Parties, Preliminary Objection
- 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
Samuel Mwamba Ambundo & 327 Others
Plaintiff
Spell Investment Co. Ltd.
Defendant
Consolata Nabwire Asembo
Defendant
Consolidated Bank of Africa
Defendant
Francisca Adikinyi Asembo
Defendant
Robert Akumu Asembo
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the 4th and 5th defendants were properly joined as parties to the suit under Order 1 Rule 10 (2) of the Civil Procedure Rules.
- 2 Whether leave of the court was required to join the 4th and 5th defendants as representatives of the estate of the deceased.
Ratio Decidendi
The court found that the 4th and 5th defendants were properly joined as parties representing the estate of the deceased, Boniface Anderson Ngosia, pursuant to an appointment from the Succession Division of the High Court. The court held that in such circumstances, no leave is required for their joinder, only evidence of a grant of representation. The court further determined that no prejudice would be suffered by their addition and that the preliminary objection lacked merit. Consequently, the court dismissed the preliminary objection and ordered that costs be in the cause.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 416 of 2008
SAMUEL MWAMBA AMBUNDO & 327 OTHERS .…. PLAINTIFFS
VERSUS
SPELL INVESTMENT CO. LTD. ………….……… 1ST DEFENDANT
CONSOLATA NABWIRE ASEMBO ……..……….. 2ND DEFENDANT
CONSOLIDATED BANK OF AFRICA …….….….. 3RD DEFENDANT
FRANCISCA ADIKINYI ASEMBO ………………. 4TH DEFENDANT
ROBERT AKUMU ASEMBO ……………….……....5TH DEFENDANT
RULING ON PRELIMINARY OBJECTION
There is a Notice to raise a Preliminary Objection by 4th and 5th defendants/respondents. The first point is numbered (a). The point numbered (b) has been withdrawn. Therefore the objection now is that no order has been made BY this court in terms of provisions of Order 1 Rule 10 (2)to empower the 4th and 5th defendants/respondents as parties to this suit and consequently, they are not proper parties to these proceedings and therefore their names ought to be struck off.
The replying affidavit sworn by Robert Akumu Asembo states that he is the son of Francisca A. Asembo, the 4th defendant who has given authority to him swear this affidavit. Court leave was not obtained to join them in the suit. They should not be sued together as a single party.
They relied on the authority of Chanzu vs. Guardian Bank Villa Ltd. Considering the Civil Procedure Rules in relation to that authority it is to be observed that Order 1 Rule 10 (1)and(2) deals with substitution and addition of parties where a suit has already been instituted. Order 1 Rule 10 (2) deals in circumstances where the court may at any stage of proceedings either upon or without application of either party and on terms as may be just add any party to the suit.
In this case the applicants were joined in the place of the deceased relative and the appointment issued from Succession Division of this High Court. They represent the estate of the late Boniface Anderson Ngosia. No leave would be required in the circumstances, only evidence of a grant. There is no prejudice which will be suffered by the addition.
In the circumstances, I find no merit in the Preliminary Objection and I do not uphold the Preliminary Objection. Costs will be in the cause.
Orders accordingly.
DATED, SIGNED and DELIVERED this 17th day of July, 2009.
JOYCE N. KHAMINWA
JUDGE