JOINDER OF PARTIES AND CAUSES OF

ACTION
INTRODUCTION
 JOINDER OF PARTIES AND CAUSES OF ACTION
• The determining factor in joinder of parties is that a common question of fact or law would arise
between the existing and the intended parties.
• The grounds for joinder of parties in legal proceedings, as outlined in the given context, include:
• Common Transaction or Series of Transactions:
• All parties involved share rights in a proceeding that pertain to the same transaction or a series of related
transactions.
• This is in accordance with Order 1, Rule 1 of the Civil Procedure Rules (CPR).
• It's important to note that the rules of the court may allow for voluntary or mandatory joinder of parties,
and the court retains the right to order separate trials or other procedures as deemed necessary. The
grounds provided ensure that parties with interconnected legal interests or claims arising from a
common set of transactions can be joined in the same proceedings
 JOINDER OF PARTIES AND CAUSES OF ACTION

• Common Question of Law or Fact

• Parties can be joined in legal proceedings when there is a common question of fact or law that would or
might arise if separate proceedings were initiated by the parties, as outlined in Order 1, Rule 3 of the
Civil Procedure Rules (CPR).
• This principle, exemplified in the case Francis Ndichu Thaiya & Another v Rose Mbithe & 3 Others[2012]
e KLR, allows for the consolidation of cases where shared factual or legal issues exist, promoting
efficiency in the legal process and facilitating a unified resolution of common questions.
JOINDER OF PARTIES AND CAUSES OF ACTION

• When the court's permission is granted:

• a) If individuals are co-claimants, being joined as co-plaintiffs, or joined as a defendant without their
consent, the court's approval is required.
• b) If individuals share joint and several liability for the relief sought, they are not obligated to be joined
as co-defendants unless the court halts the proceedings until all parties are joined.
• These provisions are in accordance with Order 1, Rule 3 of the Civil Procedure Rules (CPR).
 JOINDER OF PARTIES AND CAUSES OF ACTION

• If the presence of any person as a party to a proceeding may enhance the convenient administration of justice.
• If a person's presence is essential as a party to enable the court to effectively adjudicate upon issues or is
mandated by statute. (Order 1, Rule 10(2), CPR)
• In situations where there is uncertainty about the person against whom a plaintiff is entitled to relief. (Order 1,
Rule 7, CPR)
• The court is empowered to order separate trials if the joinder of plaintiffs has the potential to cause
embarrassment or delay in the trial, as specified under Order 1, Rule 2 of the Civil Procedure Rules (CPR).
 JOINDER OF PARTIES AND CAUSES OF ACTION

• RULES OF COURT FOR JOINDEROF PARTIES

• (i) A co-plaintiff is not required to have an interest in every cause of action or the relief claimed in a proceeding.
• (ii) No proceeding shall be invalidated due to mis-joinder or non-joinder of a party.
• (iii) In situations where the joinder of parties may complicate or delay a trial or hearing, the court is empowered to:
• a) Order a separate trial or hearing; or
• b) Make such order as is just, as provided in Order 1, Rule 2 of the CPR.
 JOINDER OF PARTIES AND CAUSES OF ACTION

• iv) The court is empowered to, at any time:

• a) Order any unnecessary or improper party to cease being a party (Order 1, Rule 10(2), CPR).
• b) Add any person necessary to ensure effective adjudication in a proceeding as a party (Order 1, Rule 10(2), CPR).
• c) Make a successor of a deceased or insolvent party, or a corporate party that has been wound up or dissolved, a party
when interest or liability is assigned, transferred, or devolved (Order 24, Rule 4, CPR).
• (v) The court, at any stage of the proceeding, may grant leave to an application by Chamber Summons (before trial) or
summarily (during trial), and add or strike out a party on terms as ordered by the court (Order 1, Rule 14, CPR).
• (vi) Typically, a person may not be added as a party without their written consent.
 TEST FOR JOINDER

• In order to be joined as a party in a legal proceeding, certain criteria must be met:

• (i) They must be a necessary party.
• (ii) They must be a proper party.
• (iii) In the case of the defendant, there must be relief flowing from that defendant to the plaintiff.
• (iv) The ultimate order or decree cannot be enforced without their presence in the matter.
• (v) Their presence is necessary to enable the court to effectively and completely adjudicate upon and
settle all questions involved in the suit.
 JOINDER OF PARTIES

• A person can be added as a party to proceedings through the following means:

• (i) An intended plaintiff may add a person as a party without the need for leave from the court when
initiating legal proceedings.
• (ii) A defendant may add a person as a party after the initiation of proceedings, but this requires leave
from the court.
• (iii) The court itself may add a person as a party upon the application of any existing party, intervenors,
or on its own initiative.
• In the process of joining parties, the primary purposes are to enable the court to address matters
brought before it and to prevent the unnecessary multiplication of pleadings. Importantly, the party
being joined must have a legitimate interest in the litigation.
 JOINDER OF PARTIES

• NB: It's important to note that an original plaintiff, who lacks a cause of action, cannot add or join a
person who might have a cause of action. In legal proceedings, a cause of action refers to the legal basis
or grounds on which a party initiates a lawsuit. Therefore, someone initiating legal action must have a
valid cause of action, and they cannot bring in another party who may have a cause of action if the
original plaintiff lacks one.
• The Supreme Court of Uganda in the case of Departed Asians Property Custodian Board V Jaffer
Brothers Limited [1999] E.A 55 : “A person qualifies, on an application of a Defendant, to be joined as a
co-defendant, where it is shown that the defendant cannot effectively set up 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”
 JOINDER OF PARTIES

• The courts have established general principles regarding adding a person as a defendant to ensure a thorough and fair
resolution of a matter and the resolution of all outstanding issues:
• a) Any person against whom a plaintiff seeks relief may be designated as a defendant. However, it is not required for each
defendant to be involved in all the relief sought or in every cause of action.
• b) The court has the discretion to issue orders that it deems fair to prevent any defendant from facing unnecessary
embarrassment or expenses in attending proceedings where they may have no genuine interest.
• c) A person cannot be added as a defendant solely for the purpose of obtaining costs.
• d) In specific situations, a person may be designated as a defendant for discovery purposes. However, a defendant against
whom no cause of action has been alleged cannot be retained as a party solely to obtain inspection or discovery.
 JOINDER OF PARTIES

e) f) A company that is no longer legally active in its country of incorporation cannot be sued as a
defendant. However, a company in liquidation or receivership can be subject to legal action.
f) The same individual cannot simultaneously act as both a plaintiff and a defendant in the same legal
action. However, a defendant may be sued in two different capacities within a single lawsuit, such as
personally and as a representative.
g) g) Generally, a person cannot be added as a co-defendant against the plaintiff's wishes. However, the
court has the authority to add a joint contractor within the jurisdiction as a co-defendant, even if it
goes against the plaintiff's preferences.
h) h) In a tort lawsuit, a defendant cannot be added, even with their consent, if the plaintiff opposes such
addition.
CLAIMS AGAINST DEFENDANTS IN THE ALTERNATIVE

• Claims against defendants in the alternative involve presenting various legal assertions by a plaintiff
against one or more defendants, offering alternative scenarios or grounds for relief. This approach
allows the plaintiff to pursue different remedies or outcomes based on varying factual or legal
circumstances, providing flexibility in establishing liability or entitlement to damages.
• If one claim cannot be substantiated, the plaintiff retains the option to seek relief based on an
alternative claim. This strategy is commonly used to increase the likelihood of success in a legal action
and adapt to different possible scenarios throughout the litigation process.
CLAIMS AGAINST DEFENDANTS IN THE ALTERNATIVE

• If there are multiple defendants in a legal action, the plaintiff has the option to make alternative claims
against them. For instance, in cases involving a principal and an agent accused of breaching the
warranty of authority, or when there's uncertainty about the agent's authority and the principal is
joined as a co-defendant, the plaintiff can assert alternative claims.
• It's important to note that obtaining a default judgment against one defendant might be perceived as
relinquishing the claim against the other defendant.
 JOINDER OF PARTIES BY THE COURT ON
ITSOWN MOTION

• The court can include a party considered necessary, even without their consent.
• If a party refuses to be added as a plaintiff, the court may add them as a defendant.
• When the plaintiff opposes adding a party as a co-defendant, the court may add them as a third party.
• The court has the discretion to strike out a third party if their inclusion lacks justification.
• Removal of a party for mis-joinder does not nullify the lawsuit, as long as the cause of action remains intact.
 JOINDER OF INTERVENORS

• Intervenors are individuals or entities who enter a legal case voluntarily to provide additional perspectives or
arguments.
• Their role is to bring relevant information, expertise, or alternative viewpoints that may not be adequately
represented by the existing parties.
• Intervention is typically allowed when the intervenor has a direct interest in the subject matter of the case
and their involvement is deemed beneficial to the court's decision-making process.
• Intervenors may file a motion to join the proceedings, outlining their reasons for intervention and
demonstrating how their input will contribute to the resolution of the case.
 JOINDER OF INTERVENORS
• The court has the discretion to grant or deny intervention based on factors such as the intervenor's standing, the
timeliness of their request, and the potential impact on the existing parties.
• Intervenors are not automatically granted the status of a party to the case but may be allowed to participate in
specific aspects or stages of the proceedings.
• The intervention process aims to ensure a fair and comprehensive consideration of relevant issues, fostering a
more complete and informed decision by the court.
• Intervenors may be either Interested Parties or Amicus Curiae.
 JOINDER OF INTERVENORS

• Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure
Rules, 2013 defines an "interested party" as an individual or entity possessing a discernible stake, legal
interest, or duty relevant to the proceedings in court. However, this party is not formally recognized as a
participant in the litigation or may not be directly engaged in the legal dispute.
• In the case of Communications Commission of Kenya and 4 Others vs. Royal Media Services Limited & 7 Others
(Petition No. 15 OF [2014] eKLR), the Supreme Court of Kenya referred to its earlier decision in the MUMO MATEMO
case to define an Interested Party. In the MUMO MATEMO case, the Court held that an interested party is someone
who has a stake in the proceedings, even if not originally a party to the case. This person is expected to be impacted
by the court's decision, whether positively or negatively. An interested party believes that their interests may not be
adequately represented unless they personally participate in the proceedings to advocate for their cause.
 JOINDER OF INTERVENORS

In the Royal Media Case, the court cited the case of Meme v. Republic, [2004] 1 EA 124, where the High
Court outlined reasons for joining a party in a matter, including:
• (i) Joinder to ensure the comprehensive resolution of all issues in the proceedings;
• (ii) Joinder to protect the rights of a party at risk of adverse legal consequences;
• (iii) Joinder to prevent the likelihood of extended litigation.
 JOINDER OF INTERVENORS

• The Supreme Court of Kenya, in the case of Francis K. Muruatetu and another v. Republic & 5 others
(2016) eKLR, has established clear principles for the joinder of interested parties to suits. The court
outlined key elements that should be considered in an application for joinder as an Interested Party.
These elements include:
a) Personal Interest or Stake: The application must clearly articulate the personal interest or stake that
the party has in the matter. This interest should be easily identifiable and must be significant enough
to distinguish it from peripheral matters.
b) Demonstrated Prejudice: The application should demonstrate to the court's satisfaction the prejudice
that the intended Interested Party would suffer in the case of non-joinder. This demonstration should
be explicit and not based on remote possibilities.
 JOINDER OF INTERVENORS

c. Relevant Case or Submission: The party, in its application, should outline the case or submissions it
intends to present to the court. It must show the relevance of these submissions and demonstrate that
they bring unique perspectives, not merely replicating the arguments of other parties in the case.

These principles provide a framework for assessing applications for joinder as Interested Parties, ensuring
that the interests presented are meaningful, the potential prejudice is substantial, and the submissions
contribute distinctively to the proceedings.
 JOINDER OF INTERVENORS

• In the case of Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015]
eKLR, Justice Munyao Sila addressed the issue of an Interested Party seeking to be joined in a suit. He
expressed the following perspective:
a) The Court highlighted that individuals seeking to join as interested parties should go beyond a
superficial interest in the subject matter.
b) It is crucial for such parties to demonstrate that their inclusion is necessary for the court to effectively
settle all questions involved in the matter.
c) While acknowledging the broader impact of litigation on various parties, a mere interest without a
clear contribution to issue resolution is insufficient for joinder.
 JOINDER OF INTERVENORS

• In other words, the Court set out the test for the admission of an Interested Party thus:
a) Interested parties seeking joinder must demonstrate that their interest goes beyond mere impact and
is necessary for the effective settlement of issues in the suit.
b) It should be shown that the presence of the person is essential for the court to adequately address and
settle the questions involved in the matter.
c) Joinder may also be permitted if the intended interested party has a relevant claim of their own that
needs consideration alongside the existing claims of the plaintiff and defendant.
d) The threshold for joinder should not be set too low to prevent unnecessary inclusion of parties without
substantive contributions to the case.
e) The decision to enjoin an interested party must be based on the specific context and circumstances of
each case.
 JOINDER OF INTERVENORS

• AMICUS CURIAE
• Amicus curiae is an individual or organization who brings a particular decision or legal point to the court's
attention but does not become an active party in the ongoing legal proceedings.
• In the case of Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission and Others
& Ekuru Aukot, Presidential Petition No. 1 of 2017 , the Supreme Court of Kenya stated thus with regards to
the admission of amicus curiae:
• The court may:
• a) In any matter allow amicus curiae;
• b) Appoint a legal expert to assist the court in legal admissions;
• c) At the request of a party or on its own initiative, appoint an independent expert to assist the court on
any technical matter; and
 JOINDER OF INTERVENORS

d) Before allowing an amicus curiae, 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.
The Supreme Court, in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others
[2015] eKLR, outlined the principles governing the admission of amicus curiae as follows:
a) An amicus brief should focus on legal arguments;
b) The relationship between an amicus curiae, the principal parties, and the principal arguments should
be characterized by neutrality and fidelity to the law;
c) An amicus brief should address legal points not already covered by the parties involved in the suit or
by other amici, introducing novel aspects of the legal issue to aid in the development of the law.
 JOINDER OF PARTIES- CONCLUSION

• In summary;
• Grounds for Joinder:
 Rights in a proceeding related to the same or a series of transactions.
 Common questions of fact or law in separate proceedings.
 Necessary for convenient administration of justice or required by statute.
 Doubt about the proper party against whom relief is sought.
 JOINDER OF PARTIES- CONCLUSION

• Power of the Court:

 Court may order separate trials.
 Court may add or strike out parties at any stage.
 Leave of the court required for some additions.
• General Principles:
 Co-plaintiffs need not be interested in every cause of action.
 Mis-joinder or non-joinder doesn't defeat the proceeding.
 Court may order separate trials or make just orders.
 JOINDER OF PARTIES- CONCLUSION

• Conditions for Adding Parties:

 Must be a necessary and proper party.
 Interest in the litigation must be demonstrated.
 The court may strike out parties for mis-joinder.
 JOINDER OF PARTIES- CONCLUSION

• Claim Against Defendants in the Alternative:

 Plaintiff may claim against co-defendants in the alternative.
 Default judgment against one may be considered abandonment against others.
• Joinder of Interested Parties:
 Interested party must show a clear and proximate interest.
 Prejudice from non-joinder must be demonstrated.
 Must outline relevant submissions.
 Role of Interested Parties:
 JOINDER OF PARTIES- CONCLUSION

 Demonstrated necessity for joinder in settling all questions.

 Interest must go beyond being affected by the judgment.
 Joinder may be allowed for claims needing trial alongside the current claims.
• Amicus Curiae:
 Amicus should focus on legal arguments.
 Relationship should be neutral, with fidelity to the law.
 Should address legal points not covered by parties.
CLASS 6- JOINDER OF PARTIES
DECEMBER 2023