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ELCPartially AllowedNot stated in the judgment (suit commenced by plaint dated 3rd February 2015, filed 18th February 2015)· [2019] KEELC 2678 (KLR)

George Ted Osewe & 2 others (Suing as office bearers of Lakeland Welfare Club) v Pauline Adhiambo Raget & 5 others [2019] KEELC 2678 (KLR)

Environment and Land Court
3 July 2019
701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first-instance ruling of the Environment and Land Court (S.M. Kibunja, J) on a notice of motion dated 10th January 2019 by Kenya Commercial Bank Limited, the 6th Defendant, seeking to be struck out of the suit with costs. The application was supported by an affidavit of Omondi Okoyo Shem sworn on 17th January 2019 and opposed by a replying affidavit of the 2nd Plaintiff, Naftali Arodi Oyugi, sworn on 20th February 2019. At the hearing on 12th June 2019 only counsel for the 6th Defendant (Mr. Ragot) and the 4th and 5th Defendants (M/s Esendi) appeared; the Plaintiffs' counsel did not. The court framed two issues: whether the Plaintiffs had shown the 6th Defendant was a necessary party, and who should bear the costs. Holding that the plaint, apart from paragraph 9 which merely described the bank, contained no act, omission or prayer against it, and that the loan allegation appeared only in the replying affidavit and not in the plaint, the court found the Plaintiffs' view of pleadings erroneous. Applying Order 1 Rule 3 of the Civil Procedure Rules, the court held the Plaintiffs had failed to show the 6th Defendant was a necessary party. The court allowed the motion, struck out the 6th Defendant's name from the suit with costs, and ordered the Plaintiffs to pay the 6th Defendant's costs of the application under Section 27 of the Civil Procedure Act. Judgment was delivered on 3rd July 2019, the parties and counsel being absent.

Key legal issues

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01

Whether the 6th Defendant (Kenya Commercial Bank Limited) was a necessary party to the suit

Holding

The 6th Defendant was not a necessary party and its name was struck out of the suit.

Reasoning

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.

p. 2
02

Costs of the application

Holding

The Plaintiffs were ordered to pay the 6th Defendant's costs of the application.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The name of the 6th Defendant is struck out of the suit as prayed with costs.
  2. 2.The Plaintiffs to pay the 6th Defendant's costs of the application.

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.