'1. Tourist le Paradise Boutique Ltd, wants to be joined to the suit herein between the plaintiff and the defendant. It has filed a Notice of Motion dated 30th April 2025 seeking various orders among them that it be granted leave to be joined to the suit as an Interested Party. It has not identified itself in the header of the application as an Applicant/Intended Interested Party nor does its name appear as such after its advocate’s details at the end of the application. The plaintiff/respondent therefore submits that the application cannot be granted when the party seeking to be joined to the proceedings is not disclosed. However, I have seen in the body of the application, that is, the prayers made and the grounds in support, that reference is made to Tourist le Paradise Boutique Ltd as the applicant/Intended Interested Party. Further, in the supporting affidavit of Murtaza Abidhusein Haiderali, a director of the applicant sworn on 30th April 2025, in paragraph 2, the applicant has identified itself as Tourist le Paradise Boutique Limited. Subsequent paragraphs of the supporting affidavit also identify it as such. On that basis, I am satisfied that the applicant is sufficiently identified as the applicant and the capacity in which it brings the present application. I find that in order to serve substantive justice, the failure to indicate in the header, the name and the capacity in which the applicant brings this application is not fatal.
2. The applicant seeks various orders but at this stage, the only relevant prayer is the one seeking that it be joined in this suit as an Interested Party. It is expressed to be brought under Articles 49 and 50 of the Constitution and Order 1 rule 10(2) of the Civil Procedure Rules and all other relevant applicable provisions of the law.
3. The intended interested party however submits that this court already granted it orders to be joined as an interested party. That is not correct because when the application came before this court on 14th May 2025, this court gave directions that it was granting prayer 3 for admission of the intended interested party only in the interim only for purposes of enabling it to prosecute the prayer for being joined to the suit as an interested party. That prayer had to be considered first before the intended interested party could be allowed to participate in the other proceedings between the plaintiff and the defendant.
4. Therefore, the only prayer to be considered in the present ruling is the one for joinder. It was remiss for the intended interested party to seek the other prayers and to prosecute the same within the same application before the determination of the issue of joinder.
5. The grounds in support of that prayer as expounded in the supporting affidavit of Murtaza Abidhusein Haiderali sworn on 30th April 2025.
6. He deposes that when the plaintiff filed its application by way of notice of motion dated 16th April 2025 under certificate of urgency, this court issued ex-parte orders restraining the defendant from acting in breach of its contract with the plaintiff. In the plaintiff’s prayers and ensuing order of the court, there was also an express order against the defendant from restoring any tenant at its premises at Neptune Holiday Paradise Resort and Neptune Village Holiday Resort including Tourist le Paradise Boutique Ltd, the applicant herein who however was not named as a party to the suit. Further that the orders issued by this court contradict other orders issued by the ELC Mombasa in Appeal No. E040 of 2024 Tourist le Paradise Boutique Ltd v. Holiday Resorts Ltd on 20th December 2024 where the ELC issued orders requiring that the defendant herein ensures that the applicant herein has possession of and access to the premises occupied by the applicant within the defendant’s premises Neptune Paradise Holiday Resort and Neptune Paradise Village Resort.
7. The applicant deposes further that the dispute between the plaintiff and the defendant herein does not concern or involve the applicant and it should not be obstructed from enforcing the orders issued in its favour.
8. The application is opposed by the plaintiff who filed grounds of opposition dated 31st May 2025 and avers that:
a. The application cannot be granted because the name and identity of the purported Interested Party/Applicant who is seeking to join this suit is not disclosed.
b. The dispute herein is purely between the plaintiff and the defendant and the subject matter and cause of action is breach of contract which was executed between the plaintiff and the defendant and therefore, the applicant does not have any interest in the suit herein to warrant its joinder.
c. The applicant has not demonstrated what is intends to do in this case and how it intends to participate should it be joined to the case.
d. The prayer seeking the setting aside of the orders of this court issued on 17th April 2025 is premature and cannot be granted at this stage.
e. This court lacks jurisdiction to grant a prayer which seeks to enforce orders issued in a different case and which relates to use and occupation of land, a matter which falls within the jurisdiction of the Environment and Land Court.
f. The interim orders of this court issued on 17th April 2025 cannot be set aside unless and until the plaintiff’s application dated 16th April 2025 is heard on merits.
g. The applicant should have applied to be given leave to file response to the plaintiff’s application dated 16th April 2025 but what the applicant has done amounts to short-circuiting of the said application before it is heard on its merits.
h. The plaintiff is not a party to Mombasa ELC Appeal No. E040 of 2024. The said case cannot and should not be used as a basis to set aside this court’s orders issued on 17th April 2025.
i. The applicant has not demonstrated that the plaintiff’s application dated 16th April 2025 is not merited and hence the applicant has not laid a basis for setting aside of this court’s orders.
j. The applicant’s recourse rests in a contempt of court application in Mombasa ELC Appeal No. E040 of 2024 if it feels that there is no compliance with any order issued in the said case. Otherwise it cannot seek to enforce orders issued in Mombasa ELC Appeal No. E040 of 2024 through this case.
k. The application is fatally defective because it is supported by a fatally defective affidavit which has its jurat standing alone on its own page which is different from the text of the affidavit.
l. The supporting affidavit is not proper as the deponent refers to an appeal at paragraph 1 thereof yet this case is not an appeal.
9. The defendant did not participate in the application.
10. The application was disposed of on written submissions filed by learned counsels for the applicant and the plaintiff. I have considered the submissions in the analysis that follows.
11. The applicant submits that the applicant not being privy to the contract between the plaintiff and the defendant, the same cannot be enforced against it. It relies on the case of Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR) where the court in restating the doctrine said that:
“In its classical rendering, the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party.”
12. The plaintiff submits that the applicant has no interest in the suit between the plaintiff and the defendant to warrant its joinder to the suit as the suit is for breach of contract between the two parties.
13. The plaintiff submits further that the order issued against the defendant was against all of the defendant’s tenants and the fact that the applicant was named therein does not give it any standing in the suit. Further that the applicant has not indicated how it proposes to participate in the suit.
14. The rest of the plaintiff’s submissions are a reiteration of its grounds of opposition stated above.
15. I have considered the application, the grounds in support and the grounds of opposition and the submissions by learned counsels for the parties. The issue for determination is whether the application has merit for the intended interested party to be joined to the proceedings.
16. Order 1 Rule 10(2) of the Civil Procedure Rules (CPR) under which this application is filed provides that;
“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 upon and settle all questions involved in the suit, be added.”
17. The Black’s Law Dictionary, 9th Edition at pp. 1232 defines an interested party as a party who has a recognizable stake (and therefore standing) in the matter.
18. The principles for joinder of an Interested Party in a suit were stated by the Supreme Court in the case of Communications Commission of Kenya & 3 others v Royal Media Servies Limited & 7 others; Nature Foundation Limited (Proposed Interested Party) [2014] KESC 52 (KLR) where the court stated that;
“In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
19. The Supreme Court in the above case further affirmed the decision of the High Court in the case of Meme v. Republic, [2004] 1 EA 124, where the High Court observed that a party could be enjoined in a matter for the reasons that:
a. “Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
b. joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
c. joinder to prevent a likely course of proliferated litigation.”
20. From the foregoing principles, I am satisfied that by being specifically mentioned in the order issued to the plaintiff against the defendant in the suit herein the intended IP has an identifiable stake in the proceedings herein as it is directly affected by those orders even as it is not privy to the contract between the plaintiff and the defendant.
21. Its argument that it also is engaged with the defendant in the ELC court in Mombasa over the same subject matter where the plaintiff and the defendant herein are engaged for renovations works also makes it a necessary party to this suit because any orders arising therefrom will affect it.
22. I am persuaded that the intended Interested Party has on the face of it, demonstrated an identifiable stake in the proceedings before this Court. In the circumstances, I am satisfied that the intended IP is likely to suffer prejudice if it is not joined to this suit.
23. In the final analysis, I find that the application is merited and the same is allowed.
24. Costs shall be in the cause.
25. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 8th day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Hassan for the Applicant/Intended Interested Party.
Makadena for Plaintiff/Respondent.
Mwakireti for the Defendant/Respondent.
Ummu: Court Assistant.
'
2. The applicant seeks various orders but at this stage, the only relevant prayer is the one seeking that it be joined in this suit as an Interested Party. It is expressed to be brought under Articles 49 and 50 of the Constitution and Order 1 rule 10(2) of the Civil Procedure Rules and all other relevant applicable provisions of the law.
3. The intended interested party however submits that this court already granted it orders to be joined as an interested party. That is not correct because when the application came before this court on 14th May 2025, this court gave directions that it was granting prayer 3 for admission of the intended interested party only in the interim only for purposes of enabling it to prosecute the prayer for being joined to the suit as an interested party. That prayer had to be considered first before the intended interested party could be allowed to participate in the other proceedings between the plaintiff and the defendant.
4. Therefore, the only prayer to be considered in the present ruling is the one for joinder. It was remiss for the intended interested party to seek the other prayers and to prosecute the same within the same application before the determination of the issue of joinder.
5. The grounds in support of that prayer as expounded in the supporting affidavit of Murtaza Abidhusein Haiderali sworn on 30th April 2025.
6. He deposes that when the plaintiff filed its application by way of notice of motion dated 16th April 2025 under certificate of urgency, this court issued ex-parte orders restraining the defendant from acting in breach of its contract with the plaintiff. In the plaintiff’s prayers and ensuing order of the court, there was also an express order against the defendant from restoring any tenant at its premises at Neptune Holiday Paradise Resort and Neptune Village Holiday Resort including Tourist le Paradise Boutique Ltd, the applicant herein who however was not named as a party to the suit. Further that the orders issued by this court contradict other orders issued by the ELC Mombasa in Appeal No. E040 of 2024 Tourist le Paradise Boutique Ltd v. Holiday Resorts Ltd on 20th December 2024 where the ELC issued orders requiring that the defendant herein ensures that the applicant herein has possession of and access to the premises occupied by the applicant within the defendant’s premises Neptune Paradise Holiday Resort and Neptune Paradise Village Resort.
7. The applicant deposes further that the dispute between the plaintiff and the defendant herein does not concern or involve the applicant and it should not be obstructed from enforcing the orders issued in its favour.
8. The application is opposed by the plaintiff who filed grounds of opposition dated 31st May 2025 and avers that:
a. The application cannot be granted because the name and identity of the purported Interested Party/Applicant who is seeking to join this suit is not disclosed.
b. The dispute herein is purely between the plaintiff and the defendant and the subject matter and cause of action is breach of contract which was executed between the plaintiff and the defendant and therefore, the applicant does not have any interest in the suit herein to warrant its joinder.
c. The applicant has not demonstrated what is intends to do in this case and how it intends to participate should it be joined to the case.
d. The prayer seeking the setting aside of the orders of this court issued on 17th April 2025 is premature and cannot be granted at this stage.
e. This court lacks jurisdiction to grant a prayer which seeks to enforce orders issued in a different case and which relates to use and occupation of land, a matter which falls within the jurisdiction of the Environment and Land Court.
f. The interim orders of this court issued on 17th April 2025 cannot be set aside unless and until the plaintiff’s application dated 16th April 2025 is heard on merits.
g. The applicant should have applied to be given leave to file response to the plaintiff’s application dated 16th April 2025 but what the applicant has done amounts to short-circuiting of the said application before it is heard on its merits.
h. The plaintiff is not a party to Mombasa ELC Appeal No. E040 of 2024. The said case cannot and should not be used as a basis to set aside this court’s orders issued on 17th April 2025.
i. The applicant has not demonstrated that the plaintiff’s application dated 16th April 2025 is not merited and hence the applicant has not laid a basis for setting aside of this court’s orders.
j. The applicant’s recourse rests in a contempt of court application in Mombasa ELC Appeal No. E040 of 2024 if it feels that there is no compliance with any order issued in the said case. Otherwise it cannot seek to enforce orders issued in Mombasa ELC Appeal No. E040 of 2024 through this case.
k. The application is fatally defective because it is supported by a fatally defective affidavit which has its jurat standing alone on its own page which is different from the text of the affidavit.
l. The supporting affidavit is not proper as the deponent refers to an appeal at paragraph 1 thereof yet this case is not an appeal.
9. The defendant did not participate in the application.
10. The application was disposed of on written submissions filed by learned counsels for the applicant and the plaintiff. I have considered the submissions in the analysis that follows.
11. The applicant submits that the applicant not being privy to the contract between the plaintiff and the defendant, the same cannot be enforced against it. It relies on the case of Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR) where the court in restating the doctrine said that:
“In its classical rendering, the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party.”
12. The plaintiff submits that the applicant has no interest in the suit between the plaintiff and the defendant to warrant its joinder to the suit as the suit is for breach of contract between the two parties.
13. The plaintiff submits further that the order issued against the defendant was against all of the defendant’s tenants and the fact that the applicant was named therein does not give it any standing in the suit. Further that the applicant has not indicated how it proposes to participate in the suit.
14. The rest of the plaintiff’s submissions are a reiteration of its grounds of opposition stated above.
15. I have considered the application, the grounds in support and the grounds of opposition and the submissions by learned counsels for the parties. The issue for determination is whether the application has merit for the intended interested party to be joined to the proceedings.
16. Order 1 Rule 10(2) of the Civil Procedure Rules (CPR) under which this application is filed provides that;
“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 upon and settle all questions involved in the suit, be added.”
17. The Black’s Law Dictionary, 9th Edition at pp. 1232 defines an interested party as a party who has a recognizable stake (and therefore standing) in the matter.
18. The principles for joinder of an Interested Party in a suit were stated by the Supreme Court in the case of Communications Commission of Kenya & 3 others v Royal Media Servies Limited & 7 others; Nature Foundation Limited (Proposed Interested Party) [2014] KESC 52 (KLR) where the court stated that;
“In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
19. The Supreme Court in the above case further affirmed the decision of the High Court in the case of Meme v. Republic, [2004] 1 EA 124, where the High Court observed that a party could be enjoined in a matter for the reasons that:
a. “Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
b. joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
c. joinder to prevent a likely course of proliferated litigation.”
20. From the foregoing principles, I am satisfied that by being specifically mentioned in the order issued to the plaintiff against the defendant in the suit herein the intended IP has an identifiable stake in the proceedings herein as it is directly affected by those orders even as it is not privy to the contract between the plaintiff and the defendant.
21. Its argument that it also is engaged with the defendant in the ELC court in Mombasa over the same subject matter where the plaintiff and the defendant herein are engaged for renovations works also makes it a necessary party to this suit because any orders arising therefrom will affect it.
22. I am persuaded that the intended Interested Party has on the face of it, demonstrated an identifiable stake in the proceedings before this Court. In the circumstances, I am satisfied that the intended IP is likely to suffer prejudice if it is not joined to this suit.
23. In the final analysis, I find that the application is merited and the same is allowed.
24. Costs shall be in the cause.
25. Orders accordingly.
Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 8th day of October 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Hassan for the Applicant/Intended Interested Party.
Makadena for Plaintiff/Respondent.
Mwakireti for the Defendant/Respondent.
Ummu: Court Assistant.
'