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Court of AppealPartially AllowedCivil Appeal No. 70 of 2009· [2015] KECA 215 (KLR)

Pravin Bowry v John Ward & another [2015] KECA 215 (KLR)

Court of Appeal of Kenya
13 November 2015
EGE.M. GithinjiJMJ. MohammedSKS. ole Kantai
3,350 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can be joined as a defendant without being consulted, and the correct remedy is appeal or review.

What this practically means

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Executive summary

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The Court of Appeal (Githinji, Mohammed and Kantai, JJ.A.) dismissed an appeal by Pravin Bowry against a ruling of Sitati, J. in a defamation suit brought by John Ward against The Standard Limited, in which the newspaper had successfully applied to join Bowry as co-defendant. The appellant sought to have his name struck out, the amended plaint struck out and the suit against him dismissed, contending that the joinder application breached procedure and that the 1st respondent had conceded to his application. The High Court had dismissed that application, holding that a defendant need not be consulted before being enjoined, and that the appellant's proper remedy against the joinder order of Osiemo, J was appeal or review, not a fresh application asking the judge to sit on appeal over a decision of a judge of concurrent jurisdiction. The Court of Appeal agreed, analysing Order 1 rules 3 and 10 of the Civil Procedure Rules and adopting the criteria for joinder from Deported Asians Property Custodian Board v Jaffer Brothers, Civicon v Kivuwatt and Meme v Republic: joinder is discretionary, requires no consultation with or service on the party joined, and turns on whether the party's presence enables effectual and complete adjudication of all questions, the prejudice likely to be suffered, and the practicability of executing any order. The Court also confirmed, relying on Commercial Bank of Africa v Ndirangu and Mwanzi Road Properties, that an adversely affected non-party may appeal under rule 75 of the Court of Appeal Rules. The Court found the appellant's joinder necessary because the claim against the newspaper could not be separated from the claim against him. The appeal was dismissed, but the Court allowed the appeal in part on costs, setting aside the order awarding costs to the 2nd respondent, who had supported the application, and directed the appellant to meet the 1st respondent's costs.

Key legal issues

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01

Correct procedure for challenging an order joining a party as co-defendant

Holding

The proper course for a party aggrieved by a joinder order is to appeal or apply for review; the appellant could not by a fresh application ask a judge of concurrent jurisdiction to sit on appeal over the joinder ruling of Osiemo, J.

Reasoning

The joinder order made on 5th May 2006 was neither appealed nor reviewed. The learned judge correctly held that granting the striking-out orders would amount to sitting on appeal over a decision made consciously by a brother judge with parallel jurisdiction. An affected person may appeal under rule 75 of the Court of Appeal Rules, which this Court has interpreted as covering any person adversely affected, not only formal parties.

p. 3
02

Principles governing joinder under Order 1 rules 3 and 10 of the Civil Procedure Rules

Holding

Joinder is discretionary and does not require consultation with, or service on, the party to be joined; it suffices that the party's presence enables effectual and complete adjudication of all questions, and no cause of action against the joined party is necessary.

Reasoning

Order 1 rule 10(2) permits the court, at any stage, on or without application, to strike out improperly joined parties and add persons whose presence is necessary. The Supreme Court of Uganda in Deported Asians Property Custodian Board v Jaffer Brothers distinguished parties who ought to have been joined from those whose presence is necessary, and this Court in Civicon and Meme confirmed the discretionary criteria. The appellant's joinder was necessary because the claim against the 2nd respondent could not be separated from the claim against him.

p. 4
03

Right of appeal of a non-party adversely affected by a decision

Holding

Rule 75 of the Court of Appeal Rules permits 'any person' adversely affected by a decision to appeal, whether or not a party to the proceedings below.

Reasoning

This Court in Commercial Bank of Africa Ltd v Isaac Kamau Ndirangu interpreted 'any person' as anyone adversely affected by the decision, and in Mwanzi Road Properties Ltd v Maina Muchiri confirmed the right of an affected non-party to file a notice of appeal or seek to be joined in the appeal. The appellant was therefore wrong to contend that no appeal lay from the joinder order.

p. 5
04

Costs against a respondent who supported the appellant's application

Holding

The High Court erred in awarding costs to the 2nd respondent, who had supported the appellant's application; that part of the costs order was set aside.

Reasoning

Costs follow the event and should not be awarded to a party who in fact supported the application. The Court found this complaint well founded and set aside only that limb of the costs order, while confirming that the appellant bears the 1st respondent's costs.

p. 6

Legal principles established

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  • A defendant need not be consulted before being enjoined in a suit as a co-defendant under Order 1 rule 10 of the Civil Procedure Rules, and there is no requirement to serve the joinder application on the party intended to be joined.
  • Joinder of a party is a discretionary order guided by whether the party's presence will enable the court to effectually and completely adjudicate upon and settle all questions in the suit, any direct prejudice likely to be suffered, and the practicability of executing the order sought.
  • A person adversely affected by a decision, though not a party to the proceedings, may appeal against it; a party aggrieved by a joinder order must appeal or seek review rather than mount a fresh application attacking a ruling of a judge of concurrent jurisdiction.
  • Amendment of pleadings and joinder of parties should be freely allowed at any stage provided no prejudice or injustice which cannot be compensated by costs is caused.

Court orders

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  1. 1.The appeal against the dismissal of the application to strike out the appellant's name and the amended plaint is dismissed
  2. 2.That part of the High Court order awarding costs to the 2nd respondent is set aside
  3. 3.The appellant shall meet the costs of the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10 (including rule 2 and rule 4)
  • Civil Procedure RulesOrder 1 rule 3
  • Court of Appeal RulesRule 75(1)

Cases cited (9)

  • Lombard Banking case
  • National Bank of Kenya Ltd. v. Ndungu Njau
  • Deported Asians Property Custodian Board v. Jaffer Brothers Limited
    (1999) I EA 55 (SCU)
  • Civicon Limited v. Kivuwatt Limited & 2 others
    [2015] eKLR (Civil Appeal No. 45 of 2014)
  • Meme v. Republic
    [2004] KLR 637
  • Central Kenya Ltd. v. Trust Bank & 4 Others
    CA. No. 222 of 1998
  • Beoco Ltd v. Alfa Laval Co. Ltd
    [1994] 4 ALL ER. 464
  • Commercial Bank of Africa Ltd. v. Isaac Kamau Ndirangu
    Civil Appeal No. 157 of 1991
  • Mwanzi Road Properties Ltd v. Maina Muchiri & another
    [1996] eKLR (Civil Application No. Nai 69 of 1996)
On appeal from
High Court of Kenya at Nairobi
HCCC No. 1062 of 2005
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court under the applicable appellate provisions (not expressly stated in the judgment); appeal against an interlocutory ruling of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Pravin Bowry v John Ward & another [2015] KECA 215 (KLR)", Case Analysis (2015). Civil Appeal No. 70 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/215/eng@2015-11-13

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