Reliance Metals Limited & another v Veronicah Wanjiku Waciuri t/a Garden Villa Bar & Hotel & another [2018] KEELC 3628 (KLR)
The bottom line
#A Kenyan court refused to make an advocate a defendant in a land dispute just because he held useful evidence about a disputed sale agreement.
What this practically means
#Executive summary
#Key legal issues
#Whether an advocate who attested a disputed sale agreement and is listed as a defence witness should be joined as a defendant
Joinder refused; the advocate is an officer of the court whose attendance can be secured as a witness, and no relief is sought against him
The court analysed Order 1 rule 3 and Order 1 rule 10(2) of the Civil Procedure Rules, 2010, and held that joinder requires either an alleged right to relief against the person or a presence necessary to effectually and completely adjudicate. Useful evidence does not justify joinder, since attendance can be secured by Summons to Witness. The draft amended plaint sought no relief against the advocate, who was already lined up as a defence witness with a signed witness statement. Being a defendant carries burdens including filing a defence and exposure to costs.
Applicable test for leave to amend pleadings
Leave to amend should be freely granted unless prejudice not compensable by costs would be caused to the opposite party
The court restated the standard principle on amendments as the starting point of its analysis. However, since the draft amended plaint alleged no relief against the proposed joinder, the amendment application fell with the joinder application under Order 1 rule 3 and Order 4 rule 5, which requires that a defendant be liable to be called upon to answer the plaintiff's demand.
Legal principles established
#- Leave to amend pleadings should be freely granted unless irreparable prejudice would be occasioned to the opposite party
- A person does not qualify for joinder as a defendant merely because he has useful evidence; a right to relief must be alleged against him or his presence must be necessary for complete adjudication
- Being made a defendant carries burdens (filing a defence, risk of costs), and the court must consider whether the interests of justice justify imposing them
Court orders
#- 1.Notice of Motion dated 18th December 2017 dismissed with costs to the respondent
- Jurisdiction invoked
- Order 1 rule 3, Order 1 rule 10(2) and Order 4 rule 5 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reliance Metals Limited & another v Veronicah Wanjiku Waciuri t/a Garden Villa Bar & Hotel & another [2018] KEELC 3628 (KLR)", Case Analysis (2018). ELC Case No. 277 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3628/eng@2018-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.