[2023] KEHC 25796 (KLR)

Signon Group Limited v Kenya Ports Authority & another; Compact Freight Systems Limited (Interested Party) (Commercial Case E079 of 2023) [2023] KEHC 25796 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25796 (KLR)

Republic of Kenya

In the High Court at Mombasa

Commercial Case E079 of 2023

DKN Magare, J

November 16, 2023

Between

Signon Group Limited

Plaintiff

and

Kenya Ports Authority

Defendant

and

Autoports Freight Terminal Limited

Intended Defendant

and

Compact Freight Systems Limited

Interested Party

Ruling

1. This is a Ruling on an Application dated 23rd October 2023.

2. The Application is brought under the provisions of Order 1 Rule 10(2) and 25 of the Civil Procedure Rules and principally seeks that Autoports Freight Terminal Limited be added as 2nd Defendant to the proceedings.

3. The Applicant’s contention is that they have an interest in cargo destined to South Sudan. They are of the view that they should be heard. What I understand them to be stating, is that the allegation of diverting cargo touches on them since the Defendant does not handle cargo.

4. The Application is supported by the Affidavit of Khamis Hamid the Director of the proposed 2nd Defendant.

5. The Plaintiff filed Grounds of Opposition and submission in opposition to the Application dated 23/10/23.

6. Their case is that the proposed 2nd Defendant is not a party to the contract of storage between the Plaintiff and its customers. They submitted that the proposed 2nd Defendant will not be affected by any Orders to be issued by the Court.

7. They rely on order 1 Rule 10 (2) which provides as following: -10. Substitution and addition of parties [Order 1, rule 10. ](1)Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.(2)The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually.

8. They also rely on the case of Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR, to canvass the argument that a party who fails to established any right over the subject matter cannot be enjoined within the meaning of Order 1 Rule 10 (20 of the Civil Procedure Rules. There thus submit that the proposed 2nd Defendant has no right or interest in the suit premises.

9. They state that the Application should be dismissed.

10. The Intended 2nd Defendant filed submissions dated 23/10/2023.

11. They submitted that they have a stake in the suit and the Plaintiff ought to have enjoined them.

12. The Applicant also submitted that the Plaintiff was duty bund under Order 1 Rule 3 of theCivil Procedure Rules.

13. It was submitted that there was no need for multiplicity of suits and was convenient and effectual that the be enjoined to the proceedings. Reliance was placed on the case of Kinluc Holding Limited v Mint Holdings Limited & Another (1998) eKLR that the object of Order 1 Rule 3 was to prevent unnecessary multiplicity of suits.

14. Counsel further submitted that under Order 1 Rule 10, the principle of joinder of parties is allowed as of right subject to the discretionary power of the court and in this case, joinder was necessary to as there were common questions of fact and law and the claims arose from the same transactions. To support this, the Applicant cited the case of Maalim Ahmed v Commissioner of Customs & Kenya Revenue Authority (2000) eKLR.

Analysis 15. This is a fairly straight forward matter. Without going into the merit of the case, does the Applicant have sufficient interest is the case, to warrant being joined to the case. The question in this is the right of responsibility to clear and warehouse cargo going to South Sudan. Both parties have a known interest in this area. A party sued need not be interested in the entire claim.

16. Under order 1 Rule 5 of the Civil Procedure Rules, party may be joined if they have an identifiable interest. If provides as doth:-“5. Defendant need not be interested in all relief claimedIt shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.”

17. So far I am satisfied that at least the Defendant does not deal with cargo in times of actual business. It cannot divert clearance and warehousing to itself. Consequently, both parties are saying the same thing? That business is either acquired or diverted, depending on who you ask. It is thus necessary to have the Intended 2nd Defendant in the case to be able to defend their interests. It is not enough to have them as Interested Parties. I find that the application is merited. Given the acrimony, I note parties may not wait for the amendment to lapse. As usual I shall attach penal consequences for compliance.

18. The Plaintiff shall amend the Plaint to include the 2nd Defendant within 15 days, failing which the suit shall stand struck out for non-compliance.

Determination 19. The application dated 14/9/2023 is allowed in the following terms:-a.Leave is granted to Autoports Nairobi Freight Terminal Ltd to be joined as the 2nd Defendant and Compact Freight System Limited as Interested Party.b.To enable compliance, the Plaintiff shall amend its Plaint to include the 2nd Defendant and Interested Party who have been joined herein, within 15 days, failing which the suit shall stand, on the 16th day dismissed with cost to both Defendants.c.Costs shall be in the cause.d.The Court shall issue directions after the Ruling.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 16TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Karina for the ApplicantNo appearance for Gakuo for the DefendantPaul Buti for ApplicantMr. Gikandi for Compact FreightMiss Njuguna for Defendant