Automated Summary
Key Facts
The case involves an appeal against the dismissal of a joinder application by the appellant (Gikuno) to be added as a defendant in a suit seeking to restrain the sale of Nairobi/Block 76/54. The trial court ruled the property was sold during the pendency of the suit but found no evidence of service on the 4th, 5th, and 6th respondents. The appellate court held that the trial court erred in concluding the sale was malicious without proof of service, noting the appellant acquired an interest in the property post-sale and should have been joined to protect his rights. The appeal was allowed, and the trial court's orders were set aside to permit the appellant's joinder.
Issues
- The court assessed whether the sale of Nairobi/Block 76/54 during the pendency of the suit was conducted maliciously to defeat the injunction. The trial court concluded the sale was mischievous, but the appellate court emphasized the absence of proof that the defendants were aware of the suit at the time of the sale. The lack of an affidavit of service rendered the trial court’s conclusion invalid.
- The court determined whether the trial court correctly dismissed the application to join the appellant as a defendant under Order 1 Rule 10(2) of the Civil Procedure Rules. The key issue was whether the appellant, who purchased the property after the suit was filed, had a sufficient interest to warrant joinder. The trial court held that the appellant’s interest was acquired post-filing and the relationship with the respondents was unestablished, but the appellate court found this reasoning erroneous.
Holdings
- The appellant's joinder as a defendant was justified under the second aspect of Order 1 Rule 10(2) of the Civil Procedure Rules. Although not a party at inception, the appellant acquired an interest in the property after the sale and his participation provided necessary information for the court's adjudication.
- The trial court erred in concluding that the sale of Nairobi/Block 76/54 occurred during the pendency of the suit without concrete proof of service on the 4th, 5th, and 6th respondents. The absence of an affidavit of service meant the court could not establish that the respondents were aware of the suit or acted maliciously during the sale.
Remedies
- Each party is ordered to bear their own costs associated with the proceedings.
- The 1st, 2nd, and 3rd respondents must amend their plaint within 30 days and serve it on the appellant and the 4th, 5th, and 6th respondents. The latter parties have an additional 30 days to file and serve their responses to the amended plaint.
- The appeal has been found to have merit and is hereby allowed. The orders made in the trial court's ruling of 14th July 2022 are set aside and substituted with an order allowing the appellant to be joined to the suit as a defendant. The 1st, 2nd, and 3rd respondents are directed to amend their plaint within 30 days and serve it upon the appellant and other respondents, who then have another 30 days to file responses. The original trial records are to be returned for compliance and further directions.
Legal Principles
The court determined that the trial court's conclusion that the matter was res judicata was erroneous. Res Judicata does not apply here because the application for joinder was not previously adjudicated, and there was insufficient evidence of service to establish its applicability. The court emphasized that the two components of joinder (primary and secondary parties) must be evaluated based on the specific facts of the case and the absence of proof of service rendered the res judicata argument invalid.
Precedent Name
- Prayash Ventures Limited & 2 others vs. NIC Bank PLC Formerly NIC Bank Limited & another
- Mumo vs. Republic
- Andy Forwarders Services Limited & another vs. Price Waterhouse Coopers Limited & another
- Communications Commission of Kenya & 4 others vs. Royal Media Services Limited & 7 others
Cited Statute
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules
- Civil Procedure Rules
- Civil Procedure Act, Cap 21, Laws of Kenya
Judge Name
W Musyoka
Passage Text
- There are 2 objectives in Order 1 Rule 10(2) of the Civil Procedure Rules, the striking out or removal of parties from a suit, and joinder or addition of parties. Removal and striking out is for parties who have been improperly joined. The joinder or addition of parties is for parties who ought to have been joined to the suit. The application before the trial court was not seeking striking out of a party who had been improperly joined, but rather addition or joinder of a party whose presence would enable the trial court to effectually and completely adjudicate and settle the questions involved in the suit.
- Consequently, I find merit in the appeal herein. I hereby allow it, with the consequence that the orders made in the ruling, delivered on 14th July 2022, are hereby set aside, and substituted with an order, allowing the application, dated 4th December 2021, to have the appellant joined to the suit as a defendant.
- In view of the above, it was erroneous of the trial court, in the impugned ruling of 14th July 2022, to have concluded that the property was sold when there were pending issues, when that court did not have before it evidence that the 4th, 5th and 6th respondents were aware of the suit and the application.