Parties To Suit Joinder of Parties PDF

TOPIC 3: PARTIES TO A SUIT – JOINDER OF PARTIES
A. GROUNDS OF Subject to the right of the court to order a separate

JOINDER trial the rules of court provide the following
grounds for voluntary and mandatory joinder of
parties where joinder is being permitted:
 where all rights in a proceeding are in respect

Order 1, rule 1 of the same or a series of transactions;
 where a common question of fact or law would

Order 1, rule 3 arise in a proceeding if separate proceedings
See also Francis Ndichu were brought by parties;
Thaiya & another v. Rose  where leave of the court is obtained - where
Mbithe & 3 others [2012] eKLR persons are joint as co-plaintiffs or defendant if
(Civil Suit 564 of 2008) the person does not consent to being a
plaintiff, or where they are jointly and severally
liable for the relief sought, they need not be
joined as co-defendants unless court stays the
proceedings until all parties are joined;
 where the presence of any person as a party

to a proceeding may promote the convenient
Order 1, rule 10(2) administration of justice, for e.g., principle of
vicarious liability;
 Where a party’s presence is necessary as a
party to enable the court to effectively
adjudicate upon issues, for e.g., an
administrator, or is required by statute, for e.g.,
The AG;
 where there is doubt as to the person against

Order 1, rule 7 whom a plaintiff is entitled relief; and
 court has the power to order separate trials if

Order 1, rule 2
joinder of plaintiffs may embarrass or delay
trial.
B. RULES OF COURT FOR The rules of the court generally supplement the
JOINDER various principles developed by the courts for
joinder of parties by providing:
Order 1, rule 5  a co-plaintiff or co-defendant need not be

interested in every cause of action or in the
relief claimed in a proceeding;
Order 1, rule 9  no proceeding shall be defeated by reason of

the mis-joinder or non-joinder of a party
1
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Order 1, rule 2  where the joinder of parties may complicate or
delay a trial or hearing, the court may:
(a) order separate trial or hearing; or
(b) make such order as is just;
Order 1, rule 10(2)  the court at any time, on application or its own
motion may order:
(a) any unnecessary or improper party to
cease to be a party;
(b) any person, who is necessary to ensure
that matters are effectively adjudicated
upon in a proceeding, to be added as party;
(c) any successor of a deceased or insolvent
party or a corporate party that has been
wound up or dissolved to be made a party
when interest or liability is assigned or
transferred or devolved.
Order 1, rule 14
 the court at any stage of the proceeding may
grant leave to an application by chamber
summons (before trial) or summarily (during
trial), to add, strike out a party upon such
terms as the court may order; and
 A person usually may not be added as a

plaintiff party without their consent in writing
C. THE TEST FOR The relevant tests of determining whether or not to

JOINDER join a party in proceedings are as follows: -
i. They must be a necessary party.

Laisa Mpoye & 2 others vs
Kajiado Central Milk Project ii. They must be a proper party.
“The Board” & 5 others [2012]
eKLR where Odunga J cited the iii. In the case of the defendant, there must be
case of Kingori vs Chege & 3 a relief flowing from that defendant to the
others [2002] eKLR as per plaintiff.
Nambuye, J.
iv. The ultimate order or decree cannot be
enforced without their presence in the
matter.
v. Their presence is necessary to enable the

court effectively and completely adjudicate
upon and settle all questions involved in the
suit.
2
D. JOINDER OF PARTIES A person may be joined as a party to proceeding
BY PLAINTIFF, by:
DEFENDANT OR
COURT (i) an intended plaintiff without leave of the
court when commencing a proceeding;
(ii) a defendant after commencement of
proceeding, with leave of the court; or
(iii) the court,
(a) on application of any party or
intervenors,
(b) on its own motion.
 In joining parties, the fundamental purposes

are to enable the court to deal with matters
brought before it and avoid multiplicity of
pleadings.
 The party joined must have an interest in the
litigation.
 An original plaintiff with no cause of action
1) Joinder of defendant cannot join a person who may have a cause of
action.
The courts have laid down the following general

In Departed Asians Property principles with regard to the joinder of a person as
Custodian Board v. Jaffer a defendant.
Brothers Limited (1991) 1 EA
55. See also Crescent
Distribution Services Limited.
v Egnite Technologies
Limited & another [2013]
eKLR, cited in Kennedy Mwita
& Another vs Board of “ a person qualifies, (on an application of a
Trustees NSSF & 2 others Defendant) to be joined as a co-defendant, where
[2012] eKLR where it was held it is shown that the defendant cannot effectively
that: set a defence they desire to set up unless that
person is joined in it, or unless the order to be
made is to bind that person.”
Order 1, rule 5
 Any person against whom a plaintiff claims

some relief may be a defendant, but it is not
necessary for each defendant to be interested
Order 1, rule 2 in all relief sought or in every cause of action.
 The court may make such order as it appears

just to prevent any defendant from being
embarrassed or put to expenses by being
3
required to attend any proceedings in which
they may have no interest.
 A person cannot be made a defendant merely
to obtain costs, however under certain
circumstances a person may be made a
defendant for the purpose of discovery.
 Nonetheless, a defendant against whom no
cause of action has been pleaded cannot be
kept as a party in order to obtain inspection or
discovery.
 A company that has ceased to be in juristic
existence in the country of its incorporation
cannot be sued as a defendant. But a
company in liquidation/receivership can be
sued.
 The same person cannot be a plaintiff and a
Joseph Leboo& 2 others v defendant in the same action in both
Director Kenya Forest capacities, but a defendant may be sued in two
Services & another [2013] capacities, such as personally and as a
eKLR representative, for e.g. a mother and a next
friend of the child in a suit for injuries
 Generally, a person cannot be added as co-

defendant against the wishes of the plaintiff,
but the court may add a joint contractor who is
within the jurisdiction as a co-defendant
despite the wishes of the plaintiff.
 However, in a suit in tort, a defendant cannot
be added, even if willing, if the plaintiff
Claims against defendants in opposes.
the alternative  This is to enable the court to effectually and
completely adjudicate upon a matter and settle
all questions involved in the matter.
 Where there are co-defendants, the plaintiff

may claim against them in the alternative. For
e.g.,, where the claims are against a principal
and agent for breach of warranty of authority or
2) Joinder of parties by where there is doubt as to the agent’s authority
court on its own motion and the principal is added as co-defendant.
 A default judgment against one defendant may
Order 1, rule 10(2) be considered as an abandonment of the claim
against the other.
 Where a party is a necessary party to an

action, it may be added by the court on its own
motion, and if it does not voluntarily consent to
be added as a plaintiff, the party may be added
as a defendant to enable the court to
4
effectively determine the matters in issue.
 When the plaintiff objects to adding a party as
a co-defendant, that person may be added as
a third party and the court may on its own
motion further add another third party as a co-
defendant to the third party.
 Where there is no justification for making the
person a party, the court on its own motion
may strike the party out.
 The striking out of one of the parties for mis-
joinder does not render the suit a nullity as
long as the removal of the party leaves the
cause of action intact.
E. JOINDER OF
INTERVENORS  An intervenor is one who, on their own
Francis Karioki Muruatetu & application and with leave of the court, is
another v Republic & 5 others added to an action pending between others.
[2016] eKLR.  When added, the intervenor may have the
See also Trusted Society of status of a party to the action as ‘a friend of the
Human Rights Alliance v. court’.
Mumo Matemu & 5 Others,  An amicus curia is a person who calls the
Supreme Court Petition No. 12 attention of the court to some decision or point
of 2013 of law but does not become a party to the
action.
Raila Amolo Odinga & The Court may –

another v Independent (a) in any matter allow amicus curiae;
Electoral and Boundaries (b) appoint a legal expert to assist the Court in
Commission & 2 others & legal admissions;
Information Communication (c) at the request of a party or on its own
Technology Association initiative, appoint an independent expert to
(ICTAK) (as Amicus Curiae) assist the court on any technical matter;
[2017] eKLR further
(d) the Court shall before allowing an amicus
curia take into consideration the expertise,
independence and impartiality of the person in
question and it may take into account the
public interest or any other relevant factor.
This Court considered the role of amicus curia,

Trusted Society of Human and set out the guiding principles applicable in
Rights Alliance v. Mumo determining an application to be enjoined in that
Matemu & 5 Others Supreme capacity, as follows (para. 41):
Court Petition No. 12 of 2013, “(i) An amicus brief should be limited to legal
[2015] eKLR arguments.
(ii) The relationship between amicus curiae, the
principal parties and the principal arguments in an
appeal, and the direction of amicus intervention,
5
ought to be governed by the principle of neutrality,
and fidelity to the law…
(iii) An amicus brief should address point(s) of law
not already addressed by the parties to the suit or
by other amici, so as to introduce only novel
aspects of the legal issue in question that aid the
development of the law.”
An intervenor may also be an “interested party”

Raila Amolo Odinga & wherein: a person may at any time in any
another v Independent proceedings before the Court apply for leave to be
Electoral and Boundaries enjoined as an interested party. In the application,
Commission & 3 others [2017] the party shall:
eKLR. (a) fully describe themselves as the interested
party in the matter;
(b) inform the court of any prejudice that the
interested party would suffer if the
intervention was denied; and
(c) the grounds of submissions to be advanced
by them, their relevance to the proceedings
and the reasons for believing that their
submissions will be useful to the Court and
different from those of the other parties.
An intervenor must establish that:

Joseph Leboo& 2 others v (i) they ought to have been joined as a
Director Kenya Forest defendant initially and the failure to do so
Services & another [2013] may make the cause or matter liable to be
eKLR defeated by their non-joinder as a
See also Kwame Kariuki& defendant; or
Anor v Mohammed Hassan (ii) their presence before the court is
Ali & 3 others[2012] eKLR necessary to ensure that all matters in
dispute in the cause may be effectually and
completely be determined and adjudicated
upon.
Order 1, rule 10(2)
 Provides clear wording for a person to be
enjoined as plaintiff or defendant, but there is
no clear wording for a person to be enjoined as
an “interested party”.
 However, the words "whose presence before
the court may be necessary to enable the court
effectually and completely to adjudicate
upon…" could be deemed to cover persons
interested in the subject matter of the suit.
 There is therefore no bar to the joinder of an
interested party to a suit although the rules are
not very explicit.
Supermarine Handling
Services Ltd vs “it is probably time, that the procedure for applying
6
Commissioner General, to be joined as an interested party to proceedings,
Kenya Revenue Authority be given more consideration. An interested party
(2002) 2 KLR 758 is not a litigant per-se as he is neither a plaintiff
nor defendant.”
 Generally, the court will permit an intervenor to

become a party where the legal right of the
intervenor will be directly interfered with, such
as where the proprietary or pecuniary rights of
the intervenor will be directly affected with or
the intervenor may be liable to satisfy the
judgment or where a person’s property rights
are affected or the intervenor’s economic
interest will be affected.
Joseph Leboo & 2 others v
Director Kenya Forest  Joinder of a person as an interested party
Services & another [2013] ought not to be as stringent as the joinder of a
eKLR. person as a defendant.
 So long as a person could demonstrate that
they had a legitimate interest in the subject
matter.
 However, this does not lower the test for
joinder as an interested party.
 There has to be a clear demonstration that the
suit affects the person directly or they have to
have some knowledge which could assist the
court in dealing with the matters in
controversy.
 If the test was too liberal, then courts would be
inundated by numerous applications for
joinder, for suits inevitably affect more than just
the litigants
 Since there are no defined rules as to how
involved in the litigation an interested party
could be, it falls upon the discretion of the
court to define the parameters of involvement
of the interested party.
 This depends on the circumstances of each
case.
 The court has a duty to guide the involvement
of the interested party in every step so that the
interested party does not end up being a
litigant, for which different rules would have to
apply
 An example of this situation is an “objector”
who institutes proceedings against the decree-
holder and the judgment debtor for the
judgment obtained against the latter upon
property the objector has an interest in; this is
7
known as an “objector proceeding”.
 In the suit the objector should prove they are
in possession of the property that is subject to
execution by the decree-holder and shall stand
to be prejudiced by the execution on such
property
F. JOINDER IN  Where the plaintiff is not alive or in existence

MISNOMERS at the time the summons was issued, the
action must be discontinued, for the court has
no power under the rules of court and its
inherent jurisdiction otherwise to create a
plaintiff in addition.
Order 1, rule 10(1)  Where the name used represents some

person or thing in existence, but the party is
technically a non-existent person or body
because of the incorrect spelling of a corporate
name or the use of a trading name, et cetera,
and the court will treat the error as a
misnomer.
Mistakes in description of
parties  A mistake in the name of a plaintiff or where a
party is only described by initials of their name,
this may be corrected by an amendment as the
plaintiff is known and is the one who institutes
the suit.
 If a party is sued in an assumed name or one
acquired by usage or reputation, an
amendment will be allowed to correct the
misnomer.
 An improperly named defendant will not be
substituted after judgment.
 Where the plaintiff knows the identity but not
the name of a person involved in a cause of
action and cannot be expected to know the
name of the person, the alias may be used
initially as a misnomer to describe the real
party.
 When an alias is not a mere misnomer, the
alias may not be used if it could apply to many
parties.
APPLICATION
 Firm 9  Application to enjoin amicus curiae based on

given facts.
8
 Firm 10  Application to enjoin an interested party based
on given facts.
9
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TOPIC 3: PARTIES TO A SUIT – JOINDER OF PARTIES

A. GROUNDS OF Subject to the right of the court to order a separate

 where all rights in a proceeding are in respect

 where a common question of fact or law would

 where the presence of any person as a party

 where there is doubt as to the person against

 court has the power to order separate trials if

Order 1, rule 5  a co-plaintiff or co-defendant need not be

Order 1, rule 9  no proceeding shall be defeated by reason of

 A person usually may not be added as a

C. THE TEST FOR The relevant tests of determining whether or not to

i. They must be a necessary party.

v. Their presence is necessary to enable the

 In joining parties, the fundamental purposes

The courts have laid down the following general

 Any person against whom a plaintiff claims

 The court may make such order as it appears

 Generally, a person cannot be added as co-

 Where there are co-defendants, the plaintiff

 Where a party is a necessary party to an

Raila Amolo Odinga & The Court may –

This Court considered the role of amicus curia,

An intervenor may also be an “interested party”

An intervenor must establish that:

 Generally, the court will permit an intervenor to

F. JOINDER IN  Where the plaintiff is not alive or in existence

Order 1, rule 10(1)  Where the name used represents some

 Firm 9  Application to enjoin amicus curiae based on

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