[2009] KEHC 1932 (KLR)
The court found that the defendant himself introduced Kenya Commercial Bank into the proceedings by alleging in his defence that the bank refused to release the title documents for the suit property. Since the plaintiff's claim is for adverse possession, and any effective order would require the bank's participation...
Source-derived case information.
- Citation
- [2009] KEHC 1932 (KLR)
- Parties
- Plaintiff: Solomon Gichuru Maugo; Defendant: Joseph Mwirigi M’Ithiri; Defendant: Kenya Commercial Bank – Meru
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 96 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint and Join Co Defendant
- Outcome
- Application to amend plaint and join Kenya Commercial Bank as co-defendant granted.
- Judges
- MM Kasango
- Legal Topics
- Joinder of Parties, Adverse Possession, Amendment of Pleadings, Trusts in 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
Solomon Gichuru Maugo
Plaintiff
Joseph Mwirigi M’Ithiri
Defendant
Kenya Commercial Bank – Meru
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint and Join Co Defendant
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to join Kenya Commercial Bank as a co-defendant.
- 2 Whether the joinder of Kenya Commercial Bank would cause undue delay or multiplicity of suits.
- 3 Whether the bank has a legal interest in the subject matter of the suit.
Ratio Decidendi
The court found that the defendant himself introduced Kenya Commercial Bank into the proceedings by alleging in his defence that the bank refused to release the title documents for the suit property. Since the plaintiff's claim is for adverse possession, and any effective order would require the bank's participation (as it holds the title), the bank is a necessary party. The court held that joining the bank would not cause undue delay or multiplicity of suits, but would instead ensure that all parties with a legal interest are present and that any orders made would be binding and effective. The application to amend the plaint and join Kenya Commercial Bank as a co-defendant was therefore...
Court Disposition
Application to amend plaint and join Kenya Commercial Bank as co-defendant granted.
Orders
- Plaintiff granted leave to amend plaint as per the annexed draft to the application dated 23/4/2009. Amendment to be filed and served upon the defendant and the new party within 14 days.
- Fresh summons to issue and be served upon Kenya Commercial Bank.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Case 96 of 2008
SOLOMON GICHURU MAUGO …………...........……… PLAINTIFF
VERSUS
JOSEPH MWIRIGI M’ITHIRI …………………… 1ST DEFENDANT
THE KENYA COMMERCIAL BANK – MERU .. 2ND DEFENDANT
RULING
The plaintiff filed this case against the defendant seeking an order of declaration that he holds a portion of 6 acres in land parcel No. KIBIRICHIA/73 in adverse possession. Further, that the court do declare that the defendant since 1992 has been holding a portion of 6 acres out of that land in trust for the plaintiff. The defendant filed an amendment defence on 29/10/08. In paragraph 3 of that defence, the defendant averred that he had charged his property with Kenya Commercial Bank which had declined to release the title document despite him having made payment of Kshs. 156,000/=. That paragraph provoked the plaintiff to file the application dated 23/4/2009 which is the subject of this ruling. The plaintiff seeks to be allowed to amend the plaint so as to include a co-defendant, that is Kenya Commercial Bank, Meru. The plaintiff bases his application on the averments contained in the defendant’s defence to the effect that the bank had refused to release the subject title. The plaintiff deponed that it is necessary to make the bank a party to unveil the truth of the defendant’s dealing with the bank. The application was opposed by the defendant. In his replying affidavit, the defendant deponed that the joining of the bank as a party would result in the delay in the determination of this suit. He further stated that he has sued the bank in another suit namely, HCC No. 100 of 1992 which is pending determination before High Court at Meru. He further deponed that joining the bank would therefore lead to a multiplicity of suits. The plaintiff has a right and the prerogative to choose and implead in a suit as the defendant a person whom he seeks relief against. The object of Order 1 Rule 10(2) of the Civil Procedure Rules is to allowing the plaintiff to bring other persons as parties to the suit is to assist the court to have in its presence the parties to the dispute and this would avoid the inconvenience and the multiplicity of proceedings. It is however necessary for any party who wish to be joined as the defendant that he should have a legal interest in the subject matter. See Mula ‘The Code of Civil Procedure’ 16th Edition. The defendant cannot be heard to oppose the plaintiff’s application because it is the defendant who introduced the bank into this proceedings by stating in his defence that the bank has refused to release the title documents of the suit property. Bearing in mind that the plaintiff’s claim is one of adverse possession to the suit property, it is essential for the bank be brought into this action to ensure that if the plaintiff is successful in his claim, an order of release of the title can be made against the bank. Conversely, if the bank has an interest in that property, it will have an opportunity to bring it before court. I am therefore of the view that the plaintiffs application is merited. I grant the following orders:-
1. That the plaintiff is hereby granted leave to amend his plaint as per the annexed draft to the application dated 23/4/2009. Such amendment is to be filed and served upon the defendant and the new party within 14 days from this date hereof.
2. That the court does hereby order that fresh summons do issue to be served upon Kenya Commercial Bank.
3. The costs of the application dated 23/4/2009 shall be in the cause.
Dated and delivered at Meru this 25th day of September 2009.
MARY KASANGO
JUDGE