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JudgmentAGGREGATE CONSTRUCTION LIMITED VS. ASHLEAH DEVELOPERS LIMITED2 min read

AGGREGATE CONSTRUCTION LIMITED VS. ASHLEAH DEVELOPERS LIMITED

High Court at Milimani High Court · · Visram Aleem Alnashir

1. I have considered the Notice of Motion Application dated 4th July, 2024 together with the affidavit in support sworn on even date; the grounds of opposition dated 13 November 2024, the submissions of the parties; and the applicable law.

2. The application seeks to join the intended second defendant to the present suit; and to apply the judgement of 20 November 2019 to the intended second defendant.

3. From the outset, I note that the applicant failed to file any submissions in support of the application as per the directions of the court issued on 4 November 2024. I have therefore considered the oral submissions of the applicant and the written submissions of the intended second defendant filed on 14 November 2024.

4. The applicant submitted in short, that the reason the Plaintiff seeks joinder the intended defendant is because it is experiencing challenges in executing the decree arising out of the main suit. 

5. Having considered the above, it is evident that the applicant seeks to join the respondent to the proceedings after judgement.

6. In the present matter the main suit has a ready been determined and there are no pending proceedings to which the intended second defendant may be joined. In my view, applying a judgement to a party post judgement after the close of proceedings without hearing such a party would be a violation of its right to be heard pursuant to Article 50 of the Constitution of Kenya.

7. In Everton Coal Enterprises Limited v Karanja & 5 others [2023] KESC 98 (KLR), the Supreme Court of Kenya stated that this question has been settled in a long thread of previous decisions, and reiterated the principle set out in JMK v MWM & another [2015] eKLR, where the court stated as follows:
“…an application for joinder of parties can be filed only in pending proceedings; that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings, either before, or during the trial; and that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable”.

8. Therefore, given that judgment in the main suit was rendered over five years ago, and the proceedings have since been concluded, I am persuaded that the applicant’s motion to join the intended second defendant to the proceedings is a nullity. There are no proceedings before the court.

9. Based on the reasons set out above I find and hold that the application is without merit and the same is dismissed with costs.

    AGGREGATE CONSTRUCTION LIMITED VS. ASHLEAH DEVELOPERS LIMITED AGGREGATE CONSTRUCTION LIMITED VS. ASHLEAH DEVELOPERS LIMITED