P C Desai v Navin M Patel t/a Sandpipers Constructions & Civil Engineering Services & 13 others [2001] KECA 355 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you must sue registered trustees, not club committee members, and courts can strike out wrong parties without killing your case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an application to strike out a plaint that does not specify the precise sub-rule of order 6 rule 13(1) of the Civil Procedure Rules must fail
- 2.Whether the plaint disclosed a proper cause of action against the members of the Managing Committee of the Club when the work was done for the Club itself
- 3.Whether the correct defendant was the Registered Trustees of the Premier Club under the Trustees (Perpetual Succession) Act
- 4.Whether the court should strike out the names of wrong parties rather than allow the suit to continue against them
Key legal issues
#Specification of sub-rules in striking-out applications
Failure to cite the precise sub-rule of order 6 rule 13(1) does not invalidate a striking-out application where the grounds pleaded clearly point to the relevant sub-rules and the respondent suffers no prejudice.
The Court of Appeal in Melika vs Mbuvi had held that the particular sub-rule should be specified, but that an application may be based on any or all grounds in the rule provided they are specified. Here the grounds in the chamber summons clearly referred to rule 13(1)(b) and (d), and the respondent was aware of the objections taken. The judge's dismissal of the application solely for lack of specific reference to the sub-rules was therefore erroneous.
Wrong parties sued in the plaint
Where work is done for a club whose property vests in registered trustees, the proper defendant is the body corporate of trustees, not the members of the managing committee; a court should strike out the wrong parties and grant leave to sue the correct party.
The swimming pool was built for the Club and became part of Club property, which vests in the trustees under section 4 of the Trustees (Perpetual Succession) Act. The members of the Managing Committee were sued in a representative capacity without compliance with order 1 rule 8. Keeping wrong parties on record serves no purpose and vexes them with litigation; the judge should have removed them while allowing amendment to implead the proper defendant.
Legal principles established
#- A court may strike out the names of wrong parties where the correct party to be sued is known, rather than allow the plaintiff to vex the wrong party with litigation, while granting leave to sue the correct party.
- Non-reference to the specific sub-rule of order 6 rule 13(1) in a striking-out application is not fatal where the grounds relied on clearly identify the sub-rules and no prejudice is caused to the respondent.
- Where property of a club is vested in registered trustees under the Trustees (Perpetual Succession) Act, claims arising from work done for the club must be brought against the trustees, not the members of the managing committee.
Court orders
#- 1.The appeal is allowed
- 2.The names of the original defendants are struck out
- 3.The appellant is awarded costs of the suit and costs of the application in the superior court as well as costs of this appeal, as against the first respondent
- 4.The other respondents will have no costs as they did not make any application in the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- HCCC No 473 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and the Appellate Jurisdiction Act (not expressly stated in the judgment)
Relief refused
#Costs against the other respondents
They did not make any application in the superior court
Costs
The appellant will have costs of the suit and costs of the application in the superior court as well as costs of this appeal, as against the first respondent. The other respondents will have no costs as they did not make any application in the superior court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A Court has the power, in proper circumstances, to arrest a wrong action and we are of the view that the learned judge ought to have dismissed the defendants from the suit whilst granting leave to the plaintiff to sue the correct party.
We accept that the particular sub-rule of rule 13 of order VI of the Civil Procedure Rules, under which the application to strike out is made, should be specified and that, when the application has been brought to strike out a pleading on the only ground of it disclosing no cause of action, no affidavit evidence may be relied upon.
This appeal is therefore allowed. The names of the original defendants are struck out. The appellant will have costs of the suit and costs of the application in the superior court as well as costs of this appeal, as against the first respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "P C Desai v Navin M Patel t/a Sandpipers Constructions & Civil Engineering Services & 13 others [2001] KECA 355 (KLR)", Case Analysis (2001). Civil Appeal (HCCC No 473 of 1997 referred). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/355/eng@2001-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.