George Ted Osewe & 2 others (Suing as office bearers of Lakeland Welfare Club) v Pauline Adhiambo Raget & 5 others [2019] KEELC 2678 (KLR)
The bottom line
#Kenya's Environment and Land Court struck KCB out of a land suit because the plaintiffs never pleaded any claim against it in their plaint.
What this practically means
#Executive summary
#Key legal issues
#Whether the 6th Defendant (Kenya Commercial Bank Limited) was a necessary party to the suit
The 6th Defendant was not a necessary party and its name was struck out of the suit.
The plaint dated 3rd February 2015 only described the 6th Defendant in paragraph 9; none of the other twenty paragraphs or prayers (a) to (m) mentioned any act, omission or prayer against it. The allegation that the 2nd and 3rd Defendants were pursuing a loan from the 6th Defendant appeared only in the replying affidavit, not in the plaint. Under Order 1 Rule 3, joinder requires an alleged right to relief arising from the same act or transaction; the Plaintiffs' view that the 6th Defendant was obliged to disclose its interest and have liability determined was an erroneous view of pleadings.
Costs of the application
The Plaintiffs were ordered to pay the 6th Defendant's costs of the application.
The court found the 6th Defendant's motion had merit and, exercising its discretion under Section 27 of the Civil Procedure Act (Cap 21), ordered costs against the Plaintiffs, who had unsuccessfully opposed the striking out of the 6th Defendant.
Legal principles established
#- Joinder of a defendant requires that a right to relief arising out of the same act or transaction be alleged against that party; a party against whom no relief is pleaded in the plaint cannot be joined merely on the basis of averments in a replying affidavit.
Court orders
#- 1.The name of the 6th Defendant is struck out of the suit as prayed with costs.
- 2.The Plaintiffs to pay the 6th Defendant's costs of the application.
- Jurisdiction invoked
- Not expressly stated; decided under the Civil Procedure Act (Cap 21) and Order 1 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Ted Osewe & 2 others (Suing as office bearers of Lakeland Welfare Club) v Pauline Adhiambo Raget & 5 others [2019] KEELC 2678 (KLR)", Case Analysis (2019). Not stated in the judgment (suit commenced by plaint dated 3rd February 2015, filed 18th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2678/eng@2019-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.