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ELCPartially Allowednot stated in the excerpt· [2021] KEELC 4350 (KLR)

Karim H. Shariff v Jooem Consultants Limited & 5 others; National Land Commission & 2 others [2021] KEELC 4350 (KLR)

Environment and Land Court
10 February 2021
KBK. Bor
978 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court removed a law firm from a land dispute, ruling that witnesses belong on a witness summons, not in the list of parties.

What this practically means

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Executive summary

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The 2nd Interested Party, N.K. Mugo & Company Advocates, applied by notice dated 17/11/2020 to be struck out of the suit on the grounds that no cause of action was disclosed against it in the plaint and that, being a firm of advocates and not a company incorporated under the Companies Act, it was not a legal entity capable of being sued. The firm, through Norman Asega, a partner, deponed that it had merely acted as counsel for both the Plaintiff and the 1st Defendant in the conveyancing of the suit property and had nothing to answer. The Plaintiff opposed, arguing through counsel Waithira Kamau's replying affidavit that the firm's participation was necessary because it acted for both parties and conducted due diligence in a transaction connected to Criminal Case No. 354/2018, in which the Defendants are accused of forging transfer documents, and that Order 30 permits suits against firms. The court framed a single issue: whether the 2nd Interested Party's presence was necessary. Noting that the plaint sought no relief against the firm, the court held that although the firm's advocates could be called as witnesses, its participation as a party was unnecessary; a material witness is procured by witness summons, not by joinder. The application dated 17/11/2020 was allowed, with costs borne by the Plaintiff. Judgment was delivered virtually at Nairobi on 10 February 2021 by K. Bor, J.

Key legal issues

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01

Whether the 2nd Interested Party's presence in the suit is necessary

Holding

Not necessary; the application to strike it out was allowed with costs to the Plaintiff

Reasoning

The plaint filed on 25/5/2018 seeks no orders against the 2nd Interested Party, and it was joined only on the basis that it acted for both the Plaintiff and the 1st Defendant in the conveyancing transaction and might be a witness. The court held that a material witness need not be a party; the Plaintiff can obtain its evidence by witness summons, so the firm's joinder served no necessary purpose.

p. 2
02

Whether the 2nd Interested Party, a firm of advocates, has a real interest or stake in the outcome

Holding

It does not; it demonstrated it has no interest in the dispute

Reasoning

The firm merely acted as counsel for the vendor and purchaser in the conveyancing and had nothing to answer in the suit. Its presence was unjust, vexatious and prejudicial as it would be forced to engage counsel to defend proceedings with no cause of action against it.

p. 2

Legal principles established

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  • A material witness is not made a party to a suit; the proper procedure is a witness summons
  • A party may be joined only where its presence is necessary to enable the court effectually and completely adjudicate upon all questions in the suit

Court orders

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  1. 1.The application dated 17/11/2020 is allowed
  2. 2.The 2nd Interested Party is struck out of the suit (implied by allowing the application)
  3. 3.The costs of the application shall be borne by the Plaintiff
  4. 4.The Plaintiff is at liberty to take out witness summons for an advocate from the firm of N.K. Mugo & Company Advocates to attend court and give evidence

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 19 Rule 3
  • Civil Procedure RulesOrder 30
  • Companies Actnot stated
Jurisdiction invoked
inherent powers and Civil Procedure Rules, Order 1 Rule 10(2)

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, "Karim H. Shariff v Jooem Consultants Limited & 5 others; National Land Commission & 2 others [2021] KEELC 4350 (KLR)", Case Analysis (2021). not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4350/eng@2021-02-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.