Ecoeng Limited v Ominde & another

objection seeking to strike out the Applicant/ Intended 3rd Defendants application seeking joinder of interested party. 5. The 1st and 2nd Defendant on their part seek to strike out the Plaint on the grounds that the verifying adavit has not been signed. 6. The Applicant/ Intended 3rd Defendant seek to be enjoined on the grounds that they purchased the suit property from the Defendants on the 20th September 2022. That upon completion of the Purchase price the suit property was transferred to them on 8th August 2023. They thus seek to be enjoined as Defendants as they have a stake in the property. 7. Having considered the various applications and the submissions led by the parties the court distills the following issues for determination;Whether the Preliminary Objection has meritWhether the intended 3rd Defendant should be enjoined.Whether the intended 3rd Defendant lacks locus.Whether contempt is proved. 8. The court must rst resolve the jurisdictional questions raised as a Preliminary Objection. The 1st and 2nd Defendant seek to have the Plaintis suit struck out on the grounds that the verifying adavit has not been signed hence is defective. The 1st and 2nd Defendants contend that the failure to sign the verifying adavit is a fundamental defect that is not curable hence the entire suit should be struck out. 9. Order 4 Rule 1(2) requires a verifying adavit. Section 5 of the Oaths ad Statutory Declarations Act provides “ Every adavit shall be sworn before a commissioner for oaths or other authorized ocer" An uncommissioned adavit does not meet the basis requirement of an adavit. There is nothing before the court to exercise discretion upon. 10. However, the defective adavit does not invalidate the plaint. The courts have held that it is a curable defect see Microsoft Corp. v Mitsumi ; Julius Mwangi Gichuki v KRA. I ascribe to this school of thought. As such I strike out the adavit and grant leave to the Plaintis to le a proper adavit. 11. The intended 3rd Defendant claims to have purchased the property on 20th September 2022, fully paid for the same by 8 August 2023, upon which it was transferred to it. They seek to be enjoined to the suit as any orders made are likely to adversely aect them. 12. Joinder of parties is prescribed under Order 10 rule 2 of the Civil Procedure Rules thus: 13. (1) Where a suit has been instituted in the name of the wrong persons as plainti, or where it is doubtful whether it has been instituted in the name of the right plainti, the court may at any stage of the suit, if satised that the suit has been instituted through a bonade mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plainti upon such terms as the court thinks t. (2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plainti or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added. The paramount consideration for the court is whether the applicants presence is necessary for the court to eectually and completely adjudicate and settle all questions involved in the suit. As the now https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18542/eng@2025-11-27 2

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registered owners of the suit property, there is no doubt that the presence of the applicants will be critical in determining the issues herein. 14. Contempt of Court is provided for under Section 5 of the Judicature Act. Section 5 thus provides as follows: “ (1). 15. The High Court and the Court of Appeal shall have the same power to punish for contempt of court as is for the time being possessed by the High Court of justice in England, and that power shall extend to upholding the authority and dignity of the subordinate courts.” Additionally, section 29 of the Environment and Land Court Act provides as follows; “ Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an oence, and shall, on conviction, be liable to a ne not exceeding twenty million shillings or to imprisonment for a term not exceeding two years, or to both.” 16. Justice Mativo (as he then was) set out the ingredients for establishing contempt in the case Samuel M N Mweru & Others v National Land Commission & 2 others [2020] eKLR wherein he stated; “ It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove (i) the terms of the order, (ii) knowledge of these terms by the Respondent, (iii) failure by the Respondent to comply with the terms of the order.” 17. In the instant case the terms of the order are not clear. While the Plaintis allege the orders violated were the orders of 9 January 2023, the record shows interim orders were granted on 19th December 2022, and armed in the ruling dated 23rd July 2023. On the 29th February 2024 the court issued orders of status quo. There were no orders issued on 9th January 2023. In view the fact that the application cites contempt of orders issued on 9th January 2023, I nd that the rst ingredient of clear terms of the order have not been proved to the required standard of proof which is higher than a balance of probabilities. As such the contempt application fails. 18. In the end the court makes the following orders ; i. Defendants’ PO on verifying adavit is dismissed. The defective adavit is struck out. Plaintis to le a commissioned verifying adavit within 7 days. ii. Plaintis’ PO against intended 3rd Defendant is dismissed. iii. Intended 3rd Defendant’s joinder application is allowed. They shall be joined as the 3rd Defendant and le a Defence within 21 days of uploading the Ruling on the portal. iv. Contempt application is dismissed. v. Status quo orders issued on 29 February 2024 remain in force pending the hearing of the suit. vi. Costs shall abide outcome of the main suit vii. Parties to take pre-trial directions within 30 days. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 27TH DAY OF NOVEMBER, 2025. JUDY OMANGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18542/eng@2025-11-27 3

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JUDGE In the presence of; Court Assistant - Catherine. Mr. Rerimoi holding brief for Juma for Applicant 3rd Defendant. Mrs. Chiwon for Simiyu for Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18542/eng@2025-11-27 4

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