Njira v Gakuyo Real Estate Limited

4. The application was responded to vide a replying adavit dated 28/9/2021 and led on 4/10/2021. It was sworn by one Dickson Michind Nyokabi who introduced himself as the Chief Executive Ocer of the defendant. He deposed, interalia, that the amended agreement (also called second agreement by the plainti) was an addendum to the earlier agreement and that the defendant already sued is the benecial owner under that agreement and not the intended second defendant. The intended second defendant was said to have been an agent of the defendant already sued and “thus the available legal remedy to the plainti/Applicant is rightfully against the defendant as opposed to its agent.” 5. Further, the amended sale agreement was said to reect that the intended second defendant was acting through the defendant now sued and that the same amended agreement was peripheral to the earlier agreement. 6. The application was canvassed through written submissions. The applicant’s submissions were led on 2/2/2022. According to the applicant, joinder of the intended 2nd defendant is important because the amended agreement granted him immediate possession of the suit land. After such joinder amendment was said to be subsequently necessary. The court was urged to appreciate that the law on amendments allows that amendments be freely granted provided that no prejudice is occasioned to the other side. It was further pointed out that there is no prejudice if the other side can be compensated with costs. To drive the point home, cases of Eastern Bakery Vs Castelino [1958] 461, Tiidesley Vs Harper [1878] 10 ch.D, Budding v Murdoch [1875] 1 Ch.D p. 42, Simoniah v Johar [1962] E 336 and Ochieng and others v First National Bank of Chicago: Civil Appeal No. 147 of 1991 were cited and quoted as deemed necessary. 7. The respondent’s submissions were led on 16/1/2023. The respondent cited the relevant provisions of Civil Procedure Rules on amendment - specically order 8 rules 1(1) 2 (a) and (b) and order 7 rule 7 (1) – and submitted that the amended plaint in this case was led on 8/4/2021, which is three years after the suit was led. The amended plaint was therefore said to be led out of time and without leave of court. The court was therefore urged to strike out the plaint. To buttress the submission to strike out the suit, the respondents cited and quoted the case Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & Another v Francis Bahati Diwani & 2 others [2014] eKLR and Harrison C. Kariuki v Blue Shield Insurance Co. Ltd [2006] eKLR. 8. On joinder, the respondent averred that the intended second defendant should not be made a party in the suit as he was acting as an agent of the defendant now sued in this matter. The land sale transaction was said to be between the applicant and the respondent now sued and not the intended 2nd defendant in his personal capacity. It was submitted that the respondent already sued is “an articial legal person” and is “capable of hold property, suing and being sued.” 9. Ultimately, the application was said to lack merits and the court was urged to dismiss it and award costs to the respondent. 10. I have considered the application, the response made to it, rival submissions, and the entire court record in general. The suit is premised on two land sale agreements. The rst agreement shows the applicant as the seller and the respondent as the purchaser. The second agreement – styled as Amended Sale Agreement – shows the applicant as the seller and the intended 2nd defendant as the purchaser. It is not clear to me why the name of the purchaser had to change. Such change is not a minor thing in my view; it is fundamental. As pointed out by the applicant, it is the purchaser indicated in the second agreement who is put in immediate possession of the suit land. Further, it is clear that the joint account into which the purchase money is to be deposited is in the names of the applicant and the intended second defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17548/eng@2023-05-17 2

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11. Joinder is always necessary where the presence of a party is deemed necessary for proper administration of justice. It is also necessary where it becomes apparent that parties may be held jointly liable for the remedy or relief sought. It is necessary to appreciate that in any given suit, the person suing is the dominus Litis, or Lord of the law suit if you like. This is the person who prots from a favorable judgement but he is also the one liable for the eects of an adverse judgement including costs. Bearing this in mind, this person has to be given the necessary freedom to choose whom to sue. It is him who knows best those who have wronged him and where, as in this case, it is not outrightly clear as to who the relief should be sought, joinder becomes desirable. It is not lost on me that in the rst or initial agreement, the respondent – Gakuyo Real Estate Limited – is clearly shown as the purchaser. In the amended agreement however, Gakuyo Real Estate seems to be relegated to the background while the 2nd intended defendant gains prominence in the transaction. 12. The respondents would have the court believe that the entire suit should be struck out since the amended plaint was allegedly led when pleadings had already been closed. In the context of this case, I don’t understand how anyone can say that there is an amended plaint led. The only amended plaint I see is an attachment to the application now under consideration. The application is seeking leave join the intended 2nd defendant as a party. The amended plaint referred to contains a description of the intended second defendant and the necessary information relating to the intended 2nd defendant’s role in the matter. That plaint is not led. It can only be led after the application is allowed. 13. The respondent also says that the pleadings are closed. I have gone through the entire court record. The respondent has not yet led any defence to the suit. The only thing the respondent has done is to le responses to the interlocutory applications led in this matter. If the court chooses to treat the pleadings as closed, this might also means closing the doors to the respondent so that no defence is led. Needless to say, this would not be a very good scenario as both sides deserve to be heard. 14. I am persuaded that the merits of the application before me have been well demonstrated. The submissions led by the respondents do not at all persuade that joinder is un-necessary. I therefore allow the application by the applicant. Costs in the cause. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 17TH DAY OF MAY, 2023. In the absence of Macharia for plainti and Triple N.W. (absent) for the defendant. Court assistant: Leadys A. K. KANIARU JUDGE MAY 17, 2023 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17548/eng@2023-05-17 3

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