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ELCAllowedCase No 396 of 2017· [2020] KEELC 3438 (KLR)

Remtone Holding Limited v Mashukur Enterprises Limited & another [2020] KEELC 3438 (KLR)

Environment and Land Court of Kenya
3 March 2020
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) delivered on 3 March 2020 on a Notice of Motion dated 6 February 2019 by Rukima Estate Limited seeking to be enjoined in a suit concerning Nakuru Municipality Block 4/127 as 3rd defendant. The applicant, a director of whom deposed that it was issued an allotment letter on 6 July 2015 and a lease on 28 September 2018 over the suit property, argued it was a necessary party. The plaintiff opposed, contending the application should have been by chamber summons and that under Order 1 Rule 10(2) only an existing party may seek joinder, citing Salat and Kingori; the 1st defendant associated itself with that position while the 2nd defendant did not oppose. The court held that Order 1 Rule 10(2) permits joinder on the application of any person or on the court's own motion, and adopting the liberal interpretation in J M K vs M W M and Tang Gas Distributors Ltd, found that nothing stops a third party from seeking joinder. Satisfied that the applicant had a claim to an interest in the property and the suit was at a preliminary stage, the court found its presence necessary for complete adjudication. The procedural objection was dismissed as causing no prejudice, substantive justice prevailing. The application was allowed, Rukima Estate Limited was joined as 3rd defendant, the plaintiff was directed to file an amended plaint within 14 days, the defendants to file defences within 14 days of service, with costs in the cause.

Key legal issues

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01

Whether a stranger to a suit may apply to be joined as a party under Order 1 Rule 10(2)

Holding

Yes - the rule permits joinder on the application of any person or on the court's own motion; it is not confined to existing parties.

Reasoning

The court read Order 1 Rule 10(2) liberally, noting that joinder may be ordered on the court's own motion, meaning the initiative is not exclusive to existing parties. Relying on J M K vs M W M and Tang Gas Distributors Ltd, the court held that a person claiming an interest necessary for complete adjudication may seek joinder, even at a late stage, so long as proceedings are not finally disposed of.

p. 1
02

Whether the applicant was a necessary party

Holding

Yes - the applicant held an allotment letter and lease over the suit property and its presence was necessary for complete adjudication.

Reasoning

The applicant exhibited an allotment letter dated 6 July 2015 and a lease dated 28 September 2018 over Nakuru Municipality Block 4/127, demonstrating some claim to an interest in the suit property. The court found its presence necessary to effectually and completely adjudicate upon all questions, and noted the matter was still at a preliminary stage.

p. 2
03

Whether use of a Notice of Motion instead of chamber summons invalidated the application

Holding

No - the procedural irregularity caused no prejudice and the overriding duty to render substantive justice prevailed.

Reasoning

The plaintiff argued the application should have been by chamber summons. The court held that no prejudice flowed from the wrong procedural vehicle, and invoked the duty to render substantive justice, citing Martha Wangari Karua v IEBC. Procedural technicalities were not allowed to defeat a meritorious joinder application.

p. 2

Legal principles established

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  • A third party not already a party to a suit may apply for joinder under Order 1 Rule 10(2); the initiative to add a new party is not exclusively that of the existing parties.
  • The court may order joinder of a necessary party at any stage of the proceedings before final disposition, and liberally so as to effect complete adjudication.
  • Non-compliance with a procedural requirement as to the form of application does not defeat substantive justice where no prejudice is occasioned.

Court orders

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  1. 1.Rukima Estate Limited is hereby joined to this suit as 3rd defendant
  2. 2.The plaintiff to file and serve an amended plaint to reflect the joinder within 14 days from the date of delivery of the ruling
  3. 3.The defendants to file and serve defence or amended defence as the case may be within 14 days of service of the amended plaint
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 3

Cases cited (5)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others
    [2013] eKLR
  • Joseph Njau Kingori v Robert Maina Chege & 3 others
    [2002] eKLR
  • J M K vs M W M & Another
    [2015] eKLR
  • Tang Gas Distributors Ltd vs Said & Others
    [2014] EA 448
  • Martha Wangari Karua v Independent Electoral & Boundaries Commission & 3 others
    [2018] eKLR
Jurisdiction invoked
Order 1 Rule 10(2) and Order 1 Rule 3 of the Civil Procedure Rules

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, "Remtone Holding Limited v Mashukur Enterprises Limited & another [2020] KEELC 3438 (KLR)", Case Analysis (2020). Case No 396 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3438/eng@2020-03-03

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