[2001] KEHC 490 (KLR)
The court found that the applicants, having a direct interest in the subject matter by virtue of their lease and subsequent eviction, should be joined as interested parties to enable them to present their case. However, the court declined to grant the substantive prayers for refund or damages at this interlocutory...
Source-derived case information.
- Citation
- [2001] KEHC 490 (KLR)
- Parties
- Plaintiff: Tom Mboya Memorial Hall Development Association; Defendant: Luo Council of Elders; Applicant: Charles Aliwi Opiyo; Applicant: Farelly Ogola Otengo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 494 of 1998
- Procedural Posture
- Civil Case / Ruling on Chamber Summons for Joinder and Refund/damages
- Outcome
- Application partially allowed.
- Legal Topics
- Joinder of Parties, Eviction From Leased Premises, Refund of Rent, Damages for Loss of Goodwill
- 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
Tom Mboya Memorial Hall Development Association
Plaintiff
Luo Council of Elders
Defendant
Charles Aliwi Opiyo
Applicant
Farelly Ogola Otengo
Applicant
Procedural Posture
Civil Case / Ruling on Chamber Summons for Joinder and Refund/damages
Legal Issues
- 1 Whether Charles Aliwi Opiyo and Farelly Ogola Otengo should be joined as interested parties in the suit.
- 2 Whether the defendants should be ordered to refund KSh. 137,940 to the applicants for leasing business premises.
- 3 Whether damages for loss of leasehold, business, and goodwill should be awarded to the applicants due to eviction by the defendants.
Ratio Decidendi
The court found that the applicants, having a direct interest in the subject matter by virtue of their lease and subsequent eviction, should be joined as interested parties to enable them to present their case. However, the court declined to grant the substantive prayers for refund or damages at this interlocutory stage, holding that such issues are disputed and must be canvassed at a full hearing. The application for joinder was allowed, but the prayers for refund and damages were deferred to be determined at trial.
Court Disposition
Application partially allowed.
Orders
- Charles Aliwi Opiyo and Farelly Ogola Otengo trading as Paka Laundry & Dry Cleaners are joined as 2nd and 3rd interested parties in the suit.
- Prayers for refund and damages are declined at this stage and to be canvassed at full hearing.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 494 OF 1998
TOM MBOYA MEMORIAL HALL DEVELOPMENT ASSOCIATION…………………PLAINTIFFS
-VERSUS
LUO COUNCIL OF ELDERS………………………DEFENDANTS
R U L I N G
The Chamber Summons application under Order 1 Rules 10 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeks two substantive orders:
“I) THAT this Honourble Court be pleased to order that CHARLES ALIWI OPIYO and FARELLY OGOLA OTENGO trading as PAKA LAUNDRY & DRY CLEANER S be joined as 2 nd & 3rd Interested parties respectively in this suit.
ii) THAT, this Honourable Court be pleased to order the Defendants to refund the total sum of KSh. 137,940/= being the amount expended on leasing business premises at TOM MBOYA MEMORIAL HALL along Jomo Kenyatta Avenue, Mombasa. In the alternative
iii) THAT this Honourable Court be pleased to award the 2nd & 3 rd Interested Parties, damages for loss of the leasehold, business and or goodwill occasioned by the Defendants by ousting them from the premises of Tom Mboya Memorial Hall along Jomo Kenyatta Avenue, Mombasa.”
By an Affidavit sworn by MR. CHARLES ALIWI OPIYO on 25th May 2001, he says the 2nd and 3rd interested parties had leased the premises from the Plaintiff and has annexed a lease agreement in support thereof but were evicted by the Defendants on the 20/11/98.
The Defendants have apposed the application on the grounds that they were not a party to the said lease Agreement and the claim against them cannot subsist. The other argument raised herein are similar in all fours as those advanced in another application by the plaintiffs filed on 3/3/99 and on which the Court ruled that the issues raised therein should proceed to full trial. At the same time I note, the Court held that the legal standing as concerns the ownership of the suit premises is at this point unclear.
I have further noted that an earlier application by the 1st interested party to be joined in the suit was allowed by consent. In my view the issues raised in the current application are similar to those raised in the earlier application filed dated 12/2/99 and consequently I see no reason to deny them an opportunity to state their case at the same platform as the other parties herein.
However on the other prayer, having stated that the court had ruled earlier on that such issues had to proceed to hearing, I decline to grant the same. Let the parties convass the same at the full hearing herein. The application shall therefore succeed partially with costs to be determined in the cause.
DATED AT MOMBASA THIS 20TH JULY 2001.
P.M. TUTUI
COMMISSIONER OF ASSIZE
MOMBASA