Remtone Holding Limited v Mashukur Enterprises Limited & another [2020] KEELC 3438 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a stranger to a suit may apply to be joined as a party under Order 1 Rule 10(2)
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.
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.
Whether the applicant was a necessary party
Yes - the applicant held an allotment letter and lease over the suit property and its presence was necessary for complete adjudication.
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.
Whether use of a Notice of Motion instead of chamber summons invalidated the application
No - the procedural irregularity caused no prejudice and the overriding duty to render substantive justice prevailed.
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.
Legal principles established
#- 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
#- 1.Rukima Estate Limited is hereby joined to this suit as 3rd defendant
- 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.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.Costs in the cause
- Jurisdiction invoked
- Order 1 Rule 10(2) and Order 1 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.