Brek Sulum Hemed v Constituency Development Fund Board & another [2017] KEELC 2672 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that parties joined to a lawsuit can counterclaim against new parties—including the original plaintiff—without needing court permission.
What this practically means
#Executive summary
#Key legal issues
#Joinder of additional parties by way of counterclaim
A defendant joined as a necessary party may, under Order 7 rules 8-12 of the Civil Procedure Rules, 2010, add persons not party to the suit as defendants to a counterclaim without separate leave
The court held that Order 7 rule 8 requires a defendant raising a counterclaim that raises questions with the plaintiff and other persons to add a further title similar to a plaint naming those persons. Rule 9 provides for summoning persons not party to the suit. The preliminary objection misapprehended these provisions and failed.
Naming the plaintiff as defendant in his own suit's counterclaim
A counterclaim creates a cross-action in which the plaintiff may properly be named as a defendant together with others
The court found no procedural bar to the plaintiff being named a defendant in the counterclaim, since the counterclaim is a cross-action with its own title in the form of a plaint. The objection that the plaintiff could not be a defendant in his own suit was rejected as contrary to the express scheme of Order 7.
Legal principles established
#- Upon joinder, necessary parties assume the character of defendants with all rights of a defendant, including the right to file a defence and counterclaim adding other parties under Order 7 rules 8-12 of the Civil Procedure Rules
Court orders
#- 1.The Plaintiff's Preliminary Objection is declined
- 2.Costs in the Cause
- Jurisdiction invoked
- Not stated in the judgment; decided under the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brek Sulum Hemed v Constituency Development Fund Board & another [2017] KEELC 2672 (KLR)", Case Analysis (2017). Civil Case No. 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2672/eng@2017-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.