[2014] KEHC 6873 (KLR)
The court found that the application to strike out the suit had been overtaken by events because the Plaintiff had already amended the Plaint to enjoin the registered proprietor, Blue Stone Holdings Limited, as the 2nd Defendant. The law provides that a suit should not be defeated by misjoinder or non-joinder of...
Source-derived case information.
- Citation
- [2014] KEHC 6873 (KLR)
- Parties
- Plaintiff: Seagulls View Ltd; Defendant: Fred Gumo; Defendant: Blue Stone Holdings Limited
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 149 of 2012
- Procedural Posture
- Land Case / Ruling on Application to Strike Out Suit
- Outcome
- application dismissed
- Judges
- OA Angote
- Legal Topics
- Striking Out Pleadings, Joinder and Misjoinder of Parties, Trespass to Land
- 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
Seagulls View Ltd
Plaintiff
Fred Gumo
Defendant
Blue Stone Holdings Limited
Defendant
Procedural Posture
Land Case / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the suit should be struck out against the 1st Defendant for lack of reasonable cause of action.
- 2 Whether misjoinder or non-joinder of parties is fatal to the suit.
- 3 Whether the amendment of the Plaint to enjoin the registered proprietor cures any defect.
Ratio Decidendi
The court found that the application to strike out the suit had been overtaken by events because the Plaintiff had already amended the Plaint to enjoin the registered proprietor, Blue Stone Holdings Limited, as the 2nd Defendant. The law provides that a suit should not be defeated by misjoinder or non-joinder of parties, and defects can be cured by amendment. Since the 1st Defendant admitted his directorship in the 2nd Defendant and the amendment addressed the ownership issue, there was no basis to strike out the suit. The application was therefore dismissed.
Court Disposition
application dismissed
Orders
- The Defendant's Application dated 27th November 2012 is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT
AT MALINDI
LAND CASE NO. 149 OF 2012
SEAGULLS VIEW LTD....................................................PLAINTIFF/RESPONDENT
=VERSUS=
FRED GUMO............................................................1ST DEFENDANT/APPLICANT
BLUE STONE HOLDINGS LIMITED…………………..………...…2ND DEFENDANT
R U L I N G
Introduction
The 1st Defendant has filed an Application dated 27th November 2012 seeking to strike out the suit with costs.
The Application is based on the grounds that the 1st Defendant is not the Registered owner of L.R. NO.5054/239, the suit property. However, the 1st Defendant has admitted that a company which he has interests in, the 2nd Defendant, owns the suit property.
The Plaintiff did not file a response to the said Application. However, the Plaintiff's advocate informed the court that he has since filed an Amended Plaint enjoining Bluestone Holdings Limited, the registered proprietor of the suit property, as the 2nd Defendant. The Plaintiff's Advocate submitted that the Defendant was sued in his personal capacity because a company cannot be accused for trespass, which is the Plaintiff's cause of action as against the 1st Defendant.
It is trite law that a suit can only be defeated if it cannot be revived by way of amendment.
Order 15 Rule 1(a) and (d) of the Civil Procedure Rules 2010 provides that at any stage of the proceedings, the court may order to be struck out or amend any pleading on the ground that it discloses no reasonable cause of action or defence in law or it is otherwise an abuse of the process of the court.
Order 1 Rule 9 and 10 of the Civil Procedure Rules further provides that a suit cannot be defeated by reason of the misjoinder or non-joinder of parties, and where a suit has been instituted in the name of the wrong persons, the court may order any other person to be added or substituted. The 1st Defendant has admitted that he is a director in the 2nd Defendant’s company. The Plaintiff has since amended the Plaint and enjoined the registered proprietor of L.R. NO.5054/239. The Application has therefore been overtaken by events.
For the reasons I have given above, I shall, which I hereby do, dismiss the Defendant's Application dated 27th November 2012. Each party shall bear its own costs.
Dated and Delivered in Malindi this 28th Day of February 2014
O. A. Angote
Judge