Mombasa Cement Limited v Salim Masoud Abdalla & 2 Others [2018] KEELC 4856 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the applicants, as alleged beneficiaries of the Wakf, are necessary parties to the plaintiff's lease dispute with the trustees
The application for joinder was dismissed; the applicants' interest in the suit property did not make them necessary parties to the contract-based claim.
The court held that the plaintiff's cause of action arises from a lease contract entered into with the trustees, whom the plaintiff sued as the recognized trustees and representatives of the community. Although the applicants claimed to seek joinder as beneficiaries, their first ground asserted they were duly elected trustees, contradicting their pleadings; parties are bound by their pleadings. Their trustee dispute was already before the High Court in HCCC No. 55 of 2017, and any claim as beneficiaries lay in another court, not in this suit.
Caution in ordering joinder of a party not chosen by the plaintiff
The court adopted the principle that the choice of whom to sue belongs to the plaintiff and should not be disturbed absent compelling reasons.
Relying on Joseph Leboo v Director Kenya Forest Services, the court held that where a plaintiff objects to the joinder of a party, the court must exercise caution and be satisfied that the remedy sought is directed against the party sought to be enjoined, or that the proceedings cannot properly be conducted without them. The plaintiff's remedy was directed at the sued trustees, so joinder of the applicants was unnecessary.
Legal principles established
#- A party seeking joinder must show that the remedy sought in the proceedings is directed against them, or that the proceedings cannot properly be conducted without them.
Court orders
#- 1.The notice of motion dated 5th July 2017 is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Order 40 rules 10(2) and 14, Order 51 rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mombasa Cement Limited v Salim Masoud Abdalla & 2 Others [2018] KEELC 4856 (KLR)", Case Analysis (2018). Not stated in judgment (notice of motion dated 5th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4856/eng@2018-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.