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Court of AppealPartially AllowedCivil Appeal (HCCC No 473 of 1997 referred)

P C Desai v Navin M Patel t/a Sandpipers Constructions & Civil Engineering Services & 13 others [2001] KECA 355 (KLR)

Court of Appeal of Kenya
6 July 2001
1,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled you must sue registered trustees, not club committee members, and courts can strike out wrong parties without killing your case.

What this practically means

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Executive summary

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The appellant, P C Desai, a defendant in HCCC No 473 of 1997, appealed against Hayanga J's dismissal of his chamber summons seeking to strike out the plaint. The first respondent, a contractor, had sued the appellant and other members of the Premier Club's Managing Committee, together with the Club itself, for non-payment for construction of a swimming pool. The appellant argued that the work was done for the Club, whose property vests in registered trustees under the Trustees (Perpetual Succession) Act, and that the wrong parties had been sued. The High Court dismissed the application because it did not specify the precise sub-rule of order 6 rule 13(1) of the Civil Procedure Rules. Allowing the appeal, the Court of Appeal held that although the particular sub-rule should be specified (as stated in Melika vs Mbuvi), the grounds in the application clearly referred to rule 13(1)(b) and (d) and no prejudice resulted from the omission. On the merits, the Court held that the swimming pool was built for the Club and became Club property, so the proper defendant was the Registered Trustees of the Club, not the Managing Committee members. The Court affirmed the principle that a court may arrest a wrong action and strike out wrong parties where the correct party is known, while granting leave to sue the correct party. The appeal was allowed, the names of the original defendants were struck out, and the appellant was awarded costs of the suit, the application, and the appeal against the first respondent; the other respondents received no costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an application to strike out a plaint that does not specify the precise sub-rule of order 6 rule 13(1) of the Civil Procedure Rules must fail
  2. 2.Whether the plaint disclosed a proper cause of action against the members of the Managing Committee of the Club when the work was done for the Club itself
  3. 3.Whether the correct defendant was the Registered Trustees of the Premier Club under the Trustees (Perpetual Succession) Act
  4. 4.Whether the court should strike out the names of wrong parties rather than allow the suit to continue against them

Key legal issues

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01

Specification of sub-rules in striking-out applications

Holding

Failure to cite the precise sub-rule of order 6 rule 13(1) does not invalidate a striking-out application where the grounds pleaded clearly point to the relevant sub-rules and the respondent suffers no prejudice.

Reasoning

The Court of Appeal in Melika vs Mbuvi had held that the particular sub-rule should be specified, but that an application may be based on any or all grounds in the rule provided they are specified. Here the grounds in the chamber summons clearly referred to rule 13(1)(b) and (d), and the respondent was aware of the objections taken. The judge's dismissal of the application solely for lack of specific reference to the sub-rules was therefore erroneous.

p. 2
02

Wrong parties sued in the plaint

Holding

Where work is done for a club whose property vests in registered trustees, the proper defendant is the body corporate of trustees, not the members of the managing committee; a court should strike out the wrong parties and grant leave to sue the correct party.

Reasoning

The swimming pool was built for the Club and became part of Club property, which vests in the trustees under section 4 of the Trustees (Perpetual Succession) Act. The members of the Managing Committee were sued in a representative capacity without compliance with order 1 rule 8. Keeping wrong parties on record serves no purpose and vexes them with litigation; the judge should have removed them while allowing amendment to implead the proper defendant.

p. 3

Legal principles established

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  • A court may strike out the names of wrong parties where the correct party to be sued is known, rather than allow the plaintiff to vex the wrong party with litigation, while granting leave to sue the correct party.
  • Non-reference to the specific sub-rule of order 6 rule 13(1) in a striking-out application is not fatal where the grounds relied on clearly identify the sub-rules and no prejudice is caused to the respondent.
  • Where property of a club is vested in registered trustees under the Trustees (Perpetual Succession) Act, claims arising from work done for the club must be brought against the trustees, not the members of the managing committee.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The names of the original defendants are struck out
  3. 3.The appellant is awarded costs of the suit and costs of the application in the superior court as well as costs of this appeal, as against the first respondent
  4. 4.The other respondents will have no costs as they did not make any application in the superior court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
HCCC No 473 of 1997
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court under the Constitution and the Appellate Jurisdiction Act (not expressly stated in the judgment)

Relief refused

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Costs against the other respondents

They did not make any application in the superior court

p. 3

Costs

The appellant will have costs of the suit and costs of the application in the superior court as well as costs of this appeal, as against the first respondent. The other respondents will have no costs as they did not make any application in the superior court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A Court has the power, in proper circumstances, to arrest a wrong action and we are of the view that the learned judge ought to have dismissed the defendants from the suit whilst granting leave to the plaintiff to sue the correct party.
p. 3Power to strike out wrong parties
We accept that the particular sub-rule of rule 13 of order VI of the Civil Procedure Rules, under which the application to strike out is made, should be specified and that, when the application has been brought to strike out a pleading on the only ground of it disclosing no cause of action, no affidavit evidence may be relied upon.
p. 2Specification of sub-rules and affidavit evidence in striking-out applications (quoting Melika vs Mbuvi)
This appeal is therefore allowed. The names of the original defendants are struck out. The appellant will have costs of the suit and costs of the application in the superior court as well as costs of this appeal, as against the first respondent.
p. 3Final orders and costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "P C Desai v Navin M Patel t/a Sandpipers Constructions & Civil Engineering Services & 13 others [2001] KECA 355 (KLR)", Case Analysis (2001). Civil Appeal (HCCC No 473 of 1997 referred). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/355/eng@2001-07-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.