[2008] KEHC 1054 (KLR)
The court held that the application to add the City Council as a second defendant was not sustainable because the defendant's defence had already been struck out and there was no defence on record. The proper course for the defendant would have been to appeal the order striking out the defence and seek its...
Source-derived case information.
- Citation
- [2008] KEHC 1054 (KLR)
- Parties
- Plaintiff: Simon Kimondo Mubea; Defendant: Rita S. Waudo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2012 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application to Add Party
- Outcome
- application dismissed with costs
- Judges
- JL Osiemo
- Legal Topics
- Joinder of Parties, Striking Out of Defence, Interlocutory Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kimondo Mubea
Plaintiff
Rita S. Waudo
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Add Party
Legal Issues
- 1 Whether the City Council should be added as a second defendant or interested party at this stage of proceedings.
- 2 Whether the application to add a party is sustainable after the defendant's defence has been struck out and interlocutory judgment entered.
Ratio Decidendi
The court held that the application to add the City Council as a second defendant was not sustainable because the defendant's defence had already been struck out and there was no defence on record. The proper course for the defendant would have been to appeal the order striking out the defence and seek its restoration before making an application to join another party. Since interlocutory judgment had already been entered and the suit was set down for formal proof, the application was considered too late. The court found no basis to exercise its discretion in favour of the defendant and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application to add the City Council as a second defendant or interested party is dismissed.
- The defendant shall pay the costs of this application.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA A
T NAIROBI (NAIROBI LAW COURTS)
Civil Suit 2012 of 1999
SIMON KIMONDO MUBEA………….………………………LAINTIFF
VERSUS
RITA S. WAUDO…….……………………….……..……DEFENDANT
R U L I N G
This is an application by the defendant seeking orders that the name on the City Council be added as a Defendant or interested party in this suit. In support of the application Rita Shidunduhu Waudo has sworn an affidavit giving grounds.
The facts which gave rise to this litigation briefly may be stated. The plaintiff filed this suit against the defendant on 18th October 1999. The defendant upon being served with summons entered appearance and filed a defence on 1st November 1999. Subsequently the defendant’s defence was struck out by the Deputy Registrar on application by the plaintiff. The defendant appealed to the High Court but the appeal was dismissed by Visram J. on 22nd September 2004. The suit property was sold to the plaintiff by the City Council and the plaintiff is the registered proprietor of the same. It is against this background that the defendant applies to have the name of the City Council added as the second defendant. But Mr. Macharia for the plaintiff submitted that for the court to grant the orders sought, the suit must be pending and there are issues to be determined. The defendant’s defence having been struck out, and Interlocutory Judgment entered and the suit set down for formal proof, and the hearing having commenced, the instant application is too late.
The defendant’s defence having been struck out and there being no defence on record, an application for orders to add the City Council as a second defendant is not sustainable. The defendant ought to have appealed against that order and have the defence restored before she could bring this application. Having come to that conclusion this application fails. I do not see how, in the circumstances, it would be proper to exercise my discretion to grant this application.
This application is dismissed with costs.
Dated and delivered at Nairobi this 17th October day of 2008.
J. L. A. OSIEMO
JUDGE