Automated Summary
Key Facts
The defendants sought to amend their defense and counterclaim to add Elijah Wanyai Mwangi as a second plaintiff. The court dismissed the application, ruling that a plaintiff's status must be voluntary and that forcing an unwilling party into the suit would be oppressive and against legal principles, citing Santana Fernandes v/s Kara Arjan & Sons (1961) E.A. 693.
Issues
- The court addressed whether defendants could compel a third party to become a plaintiff in a pending suit without their consent and subject them to a counterclaim, emphasizing that a plaintiff's status must be voluntary.
- The application cited Order VIA rule 5 for amending pleadings to join a new party, but the court questioned its proper invocation, noting that Order VIII rules 7 and 8 were not referenced in the application.
- The respondent argued that the proposed joinder was barred by res judicata, as the issue between the defendants and the third party had already been decided in another case, making it incapable of being ventilated here.
Holdings
The court dismissed the defendants' application to amend their defence and counterclaim to add a third party as a second plaintiff. The judge ruled that a plaintiff's status must be voluntary and cannot be forced upon an individual, citing the case of Santana Fernandes v/s Kara Arjan & Sons (1961) E.A. 693. The application was found to be oppressive as it sought to compel an unwilling party into litigation without their consent, which would violate the principles of the Civil Procedure Rules.
Remedies
The application to amend the pleading was dismissed, with costs awarded to the respondent.
Legal Principles
- The court held that the issue between the defendants and the intended third party was res judicata and thus incapable of being ventilated in this suit.
- The court emphasized that a plaintiff cannot be compelled to sue a party they do not wish to pursue, referencing the 'dominus litis' principle and the need for voluntary participation in litigation.
Precedent Name
Santana Fernandes v/s Kara Arjan & Sons
Cited Statute
Civil Procedure Rules
Judge Name
M. S. A. Makhandia
Passage Text
- As stated in the case of Santana Fernandes v/s Kara Arjan & Sons (1961) E.A. 693 '....... It appears from the latter case that a plaintiff being the dominus Litis cannot be compelled to sue a person, for damages in respect of a tort, whom he does not wish to sue. The instant case has demonstrated only too clearly the impossible situation in which an unwilling plaintiff is likely to find himself at the trial while a defendant is forced upon him against his will......'
- The gist of this application is to allow the defendants to amend their defence and counterclaim so as to bring in 3rd party as the 2nd plaintiff. In other words the intention of the amendment is to join one Elijah Wanyai Mwangi as a second Plaintiff in the suit. Can a party be enjoined or added as a plaintiff by defendant(s) in a pending suit without his knowledge, free will and or consent and thereafter forced to answer to a counterclaim? I do not think so.