Miguna Miguna v Fredrick Otieno Outa, Radio Africa Group, Justus Ochieng & Catherine Gicheru [2015] KEHC 549 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   CASE NO.  83   OF 2012

MIGUNA MIGUNA …………………………………PLAINTIFF

VERSUS

FREDRICK OTIENO OUTA….…........………..1ST DEFENDANT

RADIO AFRICA GROUP…….....……………2ND DEFENDANT

JUSTUS OCHIENG…………...………………3RD DEFENDANT

CATHERINE GICHERU…….........…………….4TH DEFENDANT

RULING

By a supplementary  Notice of Motion  dated 6th May 2015 and  filed  in court on 7th May 2015, the  plaintiff Miguna Miguna  seeks leave of the court to amend  his pleadings  by correcting  his plaint and  or substituting  and or adding  the word “Limited” or Ltd  to the 2nd defendant’s name, Radio Africa  Group, to read  Radio  Africa Group  and or  Radio Africa Group Ltd  and or Radio Africa Ltd;

An order for leave to add as a defendant in this matter “Star Publication Ltd” and or “The Star Newspaper;”

An order granting leave to file and serve his amended plaint in the form attached to his affidavit in support of the Notice of Motion;

And any other order that the plaintiff may request and or court deems just.

The application is premised  on the provisions of Order 1  Rule 10(2)  and (4)  of the Civil Procedure  Rules; Order 8 Rule  3(3); Order 8 Rule 4; Order 8 Rule 5; Section 1(a),1(b) 3(a) of the Civil Procedure  Act; Article  159(2) of the Constitution of Kenya.

The application is predicated on several grounds on the face of the Notice of Motion.  Materially, that at the time  of filing the suit  herein, the plaintiff’s  counsels  Kounah & company  Advocates  had incorrectly or erroneously named only the 1st, 2nd , 3rd and  4th defendants  as defendants  in the  matter.  That the impugned  libelous  matter was published by the  Star Publications Ltd and or the  Star Newspaper and Radio Africa Group/Radio Africa  Ltd or Radio Africa Group Ltd which is wholly owned  by  and or a subsidiary  of Radio Africa Group or Radio Africa Ltd  and  or Radio Africa Group  Ltd and that the libel notice  was served by the plaintiff on the named defendants including  the Star Publications Ltd and or the Star Newspaper  and  was  responded to by the Star Newspaper’s  Chief Executive Officer, Mr William Pike   on 23rd January 2012.  That the  3rd defendant  in her witness statement  and being  the managing  editor  of the Star Publication Ltd and  or the Star Newspaper  is a witness for  the 2nd  defendant Radio Africa  Group  or Radio Africa Group Ltd  or Radio Africa Ltd.

That  equally, the 3rd defendant  filed his  witness statement    as the employee  of the 2nd  defendant and the same situation applies  to  one Pickens Ochieng  Wesonga.  That equally, Mr Patrick Quarcco the Founder and CEO of  Radio Africa Group or Radio Africa Ltd or Radio Africa Group Ltd  and the Star  Publication Ltd or  the Star Newspaper  is also  listed  as a witness for  the 2nd  defendant.  That the plaintiff’s cause of  action and evidence  against the  2nd defendant  relates to transactions  and or conduct  of the Star  Publication Ltd  or the Star Newspaper and Radio Africa Group or  Radio Africa Group Ltd or Radio  Africa Ltd  and their employees  or agents  named as defendants in this matter, who are  the 3rd  and  4th defendants, are being  represented by the same firm  of advocates.

That the mistakes  are genuine  and ought  to be  corrected as they would not occasion any prejudice  and the correction will  bring before  the court the  correct identities  of the parties  being sued  and that  it is in the interest  of justice that  the application  be allowed.

The application  is supported by the affidavit  sworn by the  plaintiff  Mr Miguna  Miguna  reiterating   the above grounds and annexing exhibits  including the proposed  amended  plaint, summons and wikipedia extracts  of who Radio Africa Group  is in the media industry.

The defendants did not file any replying affidavits and neither did they oppose the application herein when the parties appeared before me this morning and urged the application.  Their only point of contention is that where parties  are substituted  or added  to the  pleadings  then an amended  and  filed plaint   and summons to enter appearance  should be  served  on the new parties to give  them an opportunity  to be heard and  that the  parties to  the suit must  also be served   with the new pleadings.

Mr Miguna  Miguna therefore  put forward  his proposals in the application and urged the court to  find that the ‘new’ parties  are  in essence  the same as  Radio Africa Group (2nd defendant) albeit he was not opposed to  effecting service  of summons to enter appearance  and amended  pleadings on the ‘new’ parties  expeditiously.

I have carefully considered the application by the plaintiff applicant, the grounds, supporting affidavit, annextures and the oral submissions   in court.  I have  also considered the responses  by the defence  counsels, wherein  they intimated that they had  no objection to the orders  being  granted save that  service on new parties must be  effected  to bring them on board.

The power to allow amendments  to pleadings is donated  by  Section 100 of  the Civil Procedure  Act which  provides that the court may at any time, and on such terms as to costs or otherwise as it may think fit amend any defect  or error  in any proceeding in a suit ; and  all necessary amendments  shall be  made for the purpose of determining  the real question or issue  raised  by or depending  on the proceeding.

The procedural law is found in Order 8 Rules 3,4,5,7 and 8 of the Civil Procedure Rules.

In the instant case, the plaintiff  seeks for  an amendment that  would have  the effect of  correcting  and  or substituting  and  or adding  other named  parties  to the proceedings  herein.

Accordingly, the provision of order 1 Rule 10 of the Civil Procedure Rules comes into play.  Under Order 1 Rule  10(2) of the Civil procedure  Rules, the court may at any stage  of the proceedings, either  upon or without  the application of either party, and on such  terms as may appear to the court  to be just, order  that the name  of any party improperly joined, whether  as plaintiff or defendant, be struck out, and that the name  of any person who ought to  have been joined, whether  as  plaintiff or  defendant, or whose  presence  before the  court may  be necessary  in order to enable  the court effectually  and completely to adjudicate and settle  all question involved  in the  suit, be added.

Under Sub Rule (4) thereof, where a defendant  is added  or substituted, the plaint  shall, unless the court otherwise  directs, be amended  in such  manner  as may be necessary, and amended  copies of the  summons and of the  plaint shall be served on the new  defendant and, if the court  thinks fit, on the original  defendant.

From the above  provisions, it is  clear that the court has  the power to grant  the orders   sought by the plaintiff, which orders are discretionary and  in this case, intended to enable the court effectually and completely  adjudicate  on all the issues  involved in the dispute.  The Rules also mandate   that where  such amendment  involves the  addition or substitution  of the parties then the new parties  must  be served  with the  amended  plaint and the  amended summons to enter appearance .  The court may also in its discretion order that the original defendants be served.

There being no objection  to the orders being sought  being granted, and as  the plaintiff’s  own application seeks for  an order that the amended  pleadings  be served  in the form attached  to  his affidavit, I accordingly  grant the  plaintiff/applicant the orders sought  in the Supplementary  Notice of Motion dated 6th May 2015.

However, as to the exact description of the parties intended to be substituted or added to the pleadings, it is important to note that Wikipedia or World Wide Web links cannot be used to provide accurate description of parties to suits.  It is important to note that proper parties before a court of law is what confers the court with jurisdiction to hear and determine disputes.  This is because   where a ‘party’ to a suit turns out not to have the legal standing or capacity to sue or to be sued the suit cannot stand.  In the case of natural persons, the law is clear that  the parties  must be  adults of sound mind  or in case of minors  and or  persons of unsound mind as  declared  under the Children’s Act and the Mental  Health Act respectively, they can sue and be sued in the name of either next friend or guardian  ad litem or as the case may be in representative suits.

In the case of Limited liability Companies, the party suing or being sued is so sued or suing in its corporate name.  The authenticity of the names of incorporated companies can only be verified by or vide a search being carried out at the Registrar of Companies.  From the  many  alternatives  descriptions given by the plaintiff  concerning who the 2nd  defendant is and  as to who the Star Publication Ltd or  the Star Newspaper  is, it is clear that  the plaintiff  is not  sure which  of the names  should  be used to describe the said  parties  who are said to be  limited  liability companies.  That being  the case, and noting  that as  was  held in the  case Richardson V Smith  & Company [1882] 21 FLA 336,341 that the right  to sue and  be sued is a corporate franchise, it will not serve  the interest of justice  if this court   was to determine the correct  name of the  parties  sought  to be  substituted or added to these  proceedings in the absence of  certificate of search  from the Registrar  of  companies.

In Appex International Ltd & Anglo Leasing & Finance  International  Limited  V Kenya Anti Corruption Commission [2012] e KLRthe court  citing with  approval the Nigerian Supreme Court  decision  on the case of  Good will & Trust  Investments Ltd  & Another  V Bill and Bush Ltd the court  held that:

“It is trite law that to be competent and have jurisdiction over a matter, proper parties must be indentified before the action can succeed.  The parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach.

The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine.  When proper  parties are not before  the court the  court lacks  jurisdiction  to hear  and determine the suit and  where the  court purports  to exercise jurisdiction   which it  does  not have, the proceedings  before it  and its  judgment  will amount to  a nullity  no matter how well  reasoned.”

In the corporate world, names mean  everything, and a misdescription of a party  can be fatal and even  incurable  by Article 159(2) ( c ) of  the Constitution  where it  causes  confusion as to who is  being referred  to or if the party or intended  party  is not aware that it is  the one  being referred   to.  It is for that reason that Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules were enacted to correct any error or default in the proceedings.

It therefore follows that it is critical for the plaintiff to get the correct description of the defendants which will not cause any confusion as to who is being sued.  To do  so, it is vital to get to know  whether the alternative names or  descriptions  of the 2nd defendant  and  The Star Publication Limited refer to one and the same entities, and  therefore the correct  description can only be obtained from  the Registrar of Companies.

Accordingly, the leave to amend is granted.  The amended  plaint  and summons to enter appearance  to be filed  and served upon  all the original  defendants  and the  ‘new’ defendants  within 30 days  from the date  hereof.

Each party to bear its own costs of this application

Dated, signed and delivered in open court at Nairobi this 24th day of November 2015.

R.E. ABURILI

JUDGE

24/11/2015

Later at 2. 30 p.m.

Coram R.E. Aburili J

C.A. Samuel

Mr Mabera for 1st defendant also holds brief for Mr Khaseke who is not before court for 2nd, 3rd and 4th Defendants.

Mr Miguna Miguna in person present.

COURT –Ruling read and delivered in open court as scheduled.

R.E. ABURILI

JUDGE

24. 11. 2015