Dk Real Estate Limited v Deacons (east Africa) Plc & 1 other

The appellant argued that misjoinder deprived the court of jurisdiction, relying on the Supreme Court of Nigeria's Goodwill case. The Court distinguished it on two fronts: whether a party is a proper party cannot be determined in isolation from the standing of all other parties, and Order 1 rule 9 of the Civil Procedure Rules expressly provides that no suit shall be defeated by misjoinder or non-joinder of parties. The contention therefore failed.

The appellant argued the trial court erred in granting both release of the equipment and payment of the principal sum when these were pleaded in the alternative. The Court examined the plaint and found the injunction and release prayers were conjunctive; only the payment of the principal sum was in the alternative and without prejudice to the release prayer. Further, the summary judgment and the release orders were not duplicative as they related to different defendants and different applications.

The claim against the 2nd respondent was liquidated and undefended at the material time; the 2nd respondent had unequivocally admitted a debt of Kshs.23,528,032 in its letter of 5th February 2016 and proposed a payment plan. The later draft defence amounted to mere denials. Under Order 36 rule 2, only the defence of the party against whom summary judgment is sought matters, which was the 2nd respondent, not the appellant. The Court found the trial Judge's discretion properly exercised.