Civil case no 74/2018

Ruling
What is before the court is there second defendants notice of motion dated 14th November
2022.
The orders sought are that the suit against the second defendant be struck out and/or the
court to remove or expunge the second defendant name from the proceedings and that the
cause of the application to be provided for.
The plaintiff at the same time filed a notice of a preliminary objection dated 21st November
2022.
The application and the preliminary objection are going to be dealt with simultaneously in
this ruling because it is this court's opinion that the preliminary objection really is a response
to the application.

From the grounds upon which the application is based and the averments in the supporting
affidavit sworn by Abdul Jabbar Khilji, it was contended that the second defendant at all
material times was in the business of selling or dealing in motor vehicles. As such it had no
insurable interest or ownership, control, or rights over the motor vehicles registration number
KCF 533 F and KCW 140X after they had disposed of the same motor vehicles to the first
defendant and the interested party respectively. That they had parted actual possession and
control of the motor vehicles to the said purchasers. It was contended that the second
defendant is a stranger to the plaintiff’s claim as they did not in law owe the plaintiff a duty of
care. That the suit here against the second defendant is totally without merit and amounts to
an abuse of the court process.

They argued that the plaintiff's action is without any merit, is arbitrary and is denting the
second Defendant’s business as a result of harassment of his clients. They prayed that the
suit against the second defendant to be struck out with cost to the second defendant.

The application is opposed.

In his replying affidavit the plaintiff stated that the application is incompetent as it is not
supported by a competent supporting affidavit and should be struck out in the first instance.
That the application is an abuse of the court process, vexatious and designed to deny him
the fruits of the judgement by taking the court on circumlocutions. That it is designed at
delaying the execution already commenced without any basis.

It was claimed that the second defendant had in fact filed an appeal against the judgement
of this court but withdrew the same and offered to satisfy the judgement which they have
now turned around in a litany of applications to avoid satisfying the entire decretal some yet
they have participated in the hearing since 2018 without raising any such issue. That the
second defendant has changed advocates severally and at no time did they ever rebut the
evidence of ownership of motor vehicle KCF 533 V.

Once the appeal was withdrawn the defendant's insurers Messers Direct Line Assurance
Limited partially settled the decree to the sum of Kenya Shilling 3 million leaving a balance of
Kenya Shillings 513 232 which remains unpaid to date hence the execution for the same
against the defendants. The second defendant having been aware of these proceedings and
not satisfied the same cannot at this hour be excused from the obligations in the decree.
Further, the second defendant cannot be allowed to argue and object this application yet it is
a judgement debtor in this suit. The plaintiff prayed that the court dismisses the application
and allow execution to run its full course to satisfy the judgement of this court.

In the notice of preliminary objection, the plaintiff objected to the application arguing that it is
bad in law, misconceived incompetent and fatally defective as it contravenes the provisions
of order 9 rule 9(a) (b) and order 9 rule 10 of the Civil Procedure Rules 2010, Laws of
Kenya. That the entire application against the respondent is gross and a blatant abuse of the
court process and the same should be struck out with costs.

Parties resolved to canvass both the preliminary objection and application by way of written
submissions.

For the second defendant it was admitted that under order 1 rule 10 (2) of the Civil
Procedure Rules it was provided that at any stage of the proceedings the court may order
that any party improperly joined whether as plaintiff or defendant be struck out. Further,
under order 2 rule 15(1), it was provided that at any stage of the proceedings the court will
order to be struck out or amended on the grounds that are stated there -in.

The second defendant, it was argued was never represented by the firm of Kamondo
Gachoka & Company Advocates. That even if the said firm purported or appear to have
been acting for the second defendant, the same as without appointment or authority or
knowledge of the second defendant and there is no proof that the second defendant
appointed the said firm. In their opinion the said firm might have been appointed by Direct-
Line Insurance Company from whom the first defendant had taken insurance cover for the
motor vehicle after buying it from the second defendant. It was claimed that the second
defendant had not at any time take insurance for the motor vehicle registration number KCW
533 F and there is no justification why it can be presumed that the law firm that was
appointed by the insurer was acting for the second defendant. It was submitted that the
second defendant has never been served with the court process for this fruit nor was it
aware of the proceedings and the matter as such the provisions of order 9 rule 9 a b and
order 9 rule 10 of the civil procedure rules 2010 laws of Kenya do not apply to them.
It was also submitted that since direct line assurance limited and the ones who partially
settled the decretal sum of Ksh 3 milion on behalf of the first defendant.

On the preliminary objection it was submitted that it is fatally deficient of the ingredients for a
preliminary objection as was enshrined in the case of Mukisa Biscuits Manufacturing
Company Vs West End Distributors Limited (1969) EA 69

For the plaintiff it was submitted that the second defendant were duly represented by the firm
of Kamondo Gachoka Company Advocates who filed an appeal for both defendants and
then withdrew it.
The plaintiff's side mostly relied on order 9 rule 9 and 10 in the preliminary objection. It was
submitted that order 9 rule 9 positions were put in place to cover mischief by a party who
after being represented by an advocate in the entire trial decides to abandon the side
advocate after judgement.
Since the plaintiff’s main objection appears to be the fact that the second defendant changed
advocate without the leave of court nor by consent of the parties, they feel that the
application by the second defendant is defective. However, looking at the contention by the
second Defendants, that they were never aware of this suit nor did they instruct the
advocates Kamondo Gachoka are they still bound by this requirement of seeking the leave
of court or consent of the other parties to get an advocate so as to protect their interest? It is
my finding that they are not and even if they are, this case presents the perfect opportunity
to invoke the provisions of Articles 50 and 159 of the Constitution of Kenya 2010. This court
must ignore procedural requirements and determine the substantive issues that are in
contention. Further, as it has been admitted by the plaintiff, the provisions of order 9 rule 9
were mainly meant to protect the advocates from clients who want to abandon them after
they have done all the work for them. This is so especially in running down cases where
plaintiffs used to change advocates to avoid paying their advocates their fees. This is not the
case here. On this ground I find that the preliminary objection lacks merit. I find that the
change of advocate by the second defendant to be in order.

The next issue for determination is whether the second defendant's name should be
expunged from the suit. The second defendant has denied ownership of the motor vehicles
in issue. They did produce proof of payment and documents from NTSA to prove the transfer
of ownership from them. They also indicated that they were not in possession of the motor
vehicle as at the time of the accident. Further, they explained that they never insured the
motor vehicles. All this goes to prove that the second defendant were mere motor vehicle
dealers who sold the vehicle to the first defendant and handed it to him. It is now my finding
that the second defendants were wrongly sued and ought not have been parties to the suit.
In conclusion it is this court's finding that the application here is meritorious and I allow it.
The preliminary objection is dismissed as it is not meritorious. Costs of the application be in
the course.

It is so ordered.