[2017] KEELC 214 (KLR)
The court held that the application was incompetent because, under Order 1 Rule 15 of the Civil Procedure Rules, only a defendant may join a third party to the proceedings. The plaintiff, therefore, lacked the procedural capacity to seek joinder of a third party. Furthermore, the application was brought under a...
Source-derived case information.
- Citation
- [2017] KEELC 214 (KLR)
- Parties
- Plaintiff: Suleiman M. Mwinyihaji; Defendant: Omar Salim Mwabei; Defendant: Victor Karhayu; Respondent: Pentum W. Musembi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 194 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Amended Notice of Motion Seeking Joinder and Injunctive Relief
- Outcome
- application dismissed with costs to the defendants
- Judges
- LC Komingoi
- Legal Topics
- Joinder of Parties, Third Party Procedure, Interlocutory Injunctions, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman M. Mwinyihaji
Plaintiff
Omar Salim Mwabei
Defendant
Victor Karhayu
Defendant
Pentum W. Musembi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Amended Notice of Motion Seeking Joinder and Injunctive Relief
Legal Issues
- 1 Whether the plaintiff can join a third party to the proceedings under the Civil Procedure Rules.
- 2 Whether the application for joinder and injunctive relief is competent and properly before the court.
Ratio Decidendi
The court held that the application was incompetent because, under Order 1 Rule 15 of the Civil Procedure Rules, only a defendant may join a third party to the proceedings. The plaintiff, therefore, lacked the procedural capacity to seek joinder of a third party. Furthermore, the application was brought under a non-existent rule (Order 10 Rule 12), further undermining its competence. The proper course for the plaintiff would have been to seek leave to amend the plaint to include additional defendants. As a result, the application was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The amended notice of motion dated 3rd July 2017 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC NO 194 OF 2015
SULEIMAN M. MWINYIHAJI…………........ PLAINTIFF
VERSUS
OMAR SALIM MWABEI……….....……1ST DEFENDANT
VICTOR KARHAYU …………..........…. 2ND DEFENDANT
PENTUM W. MUSEMBI …… 3RD PARTY/RESPONDENT
RULING
1. This is the Amended Notice of Motion dated 3rd July 2017. It is brought under Section 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act (Cap 21 Laws of Kenya) Order 10 Rule 12 of the Civil Procedure Rules and all other enabling provisions of the law.
2. It seeks orders that;
a. Spent.
b. Fentum W. Musembi be joined in these proceedings as a third Defendant and/or third party.
c. The third party/Defendant be restrained by himself, his servants, employees or their agents or any other person whosever and whatsoever from constructing, alienation or in any other way whatsoever dealing with or wasting the property known as Plot No. 826/Bububu B Squatter Settlement Scheme pending hearing and determination of the application inter parties/determination of the suit.
d. The 3rd party/Defendant be ordered to demolish any structure constructed on the parcel of land Known as Plot No. 826/Bububu B Squatter Settlement Scheme and remove all debris arising therefrom at his costs.
e. The court give directions for expeditious disposal of the suit.
f. The third party pays costs emanating from the proceedings in any event.
3. The grounds are on the face of the application listed as paragraph (i – v).
4. It is supported by the affidavit of Suleiman N. Mwinyihaji, the Plaintiff/Applicant.
5. The application was fixed for hearing on 9/11/2017. The Plaintiff/Applicant’s advocate never appeared in court to argue the application.
6. Mr. Asige for the Defendants made oral submissions in apposition of the application.
7. I have considered the Amended Notice of Motion dated 3/7/2017 and the submissions by the defence counsel.
8. I find that the said application is brought under Order 10 Rule 12 of the Civil Procedure Rules. Rule 12 does not exist.
9. Order 1 Rule 15 of the Civil Procedure Rules states;
i. “Where a Defendant claims as against any other person not already a party to the suit (hereinafter called the third party)……”
10. I agree with Mr. Asigi for the Defendants that it is only a Defendant who can join a third party.
The Plaintiff cannot join a third party. He ought to have sought leave to amend the plaint to include other Defendant(s).
11. This application as it stands is incompetent and misconceived. The same is dismissed with costs to the Defendants.
It is so ordered.
Ruling Dated, Signed and Delivered atMombasa on the16th day of November 2017 in presence of Mr. Asige for the Defendant and the Court Assistant Koitamet.
L. KOMINGOI
JUDGE
16/11/2017