Henry Oryem Okello & another v Sukhdev Sighn Lalay [2014] KEELC 348 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant's name should be struck out under Order 1 Rule 10(2)
The application for striking out was refused; the 1st Defendant's presence was held necessary for effective adjudication given the facts in controversy.
The court applied Order 1 Rule 10(2) and the authorities cited, holding that the issues raised by the 1st Defendant, including whether any cause of action lay against him and whether the plaintiffs were legal representatives of the deceased owner, involved contested facts requiring evidence at trial. The 1st Defendant had participated throughout the proceedings and only sought removal after the suit was set down for hearing. The court preferred substantive justice over technicality under Article 159 and Sections 1A, 1B and 3A of the Civil Procedure Act, and directed that if at trial he was found wrongly sued, the suit would be decided in his favour with costs.
Whether a striking-out application may proceed by Notice of Motion rather than Chamber Summons
The court declined to fault the mode of the application, dealing with substance over form.
The court noted that applications for striking out a party may be made by way of Chamber Summons, whereas the applicant had filed a Notice of Motion. Relying on Article 159 of the Constitution, the judge declined to dismiss the application on that procedural ground and considered its substance instead, consistent with the overriding objective of Sections 1A, 1B and 3A of the Civil Procedure Act.
Legal principles established
#- An application to remove a party from a suit cannot be allowed unless it will leave the suit intact.
- A party may be joined in a suit not because there is a cause of action against it but because its presence is necessary to enable the court effectually and completely adjudicate upon the matter.
- Whether there is a cause of action against a party cannot be decided on mere affidavits where there are facts in controversy; it must be interrogated at trial.
Court orders
#- 1.The 1st Defendant's Notice of Motion dated 30th April 2013 is dismissed with costs
- Jurisdiction invoked
- Order 1 Rule 10(2) & 14 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Section 1A, 1B and 3A of the Civil Procedure Act Cap 21; Article 159 of the Constitution 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Oryem Okello & another v Sukhdev Sighn Lalay [2014] KEELC 348 (KLR)", Case Analysis (2014). ELC No. 1784 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/348/eng@2014-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.