REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E337 OF 2022
CHARLES KAMARI………………………….….PLAINTIFF/RESPONDENT
-VERSUS-
PAUL KIPKEMOI TOO……………………….DEFENDANT/RESPONDENT
-AND-
ESTHER CHEPKOECH TOO
ESTHER CHEMUTAI KURUMEI
PAUL KIPKEMOI TOO
EVERLYNE CHEPKURUI TOO
(THE ADMINISTRATORS OF THE
ESTATE OF NOAH NONDIN ARAP
TOO (DECEASED)……………………..INTERESTED PARTY/APPLICANT
RULING
1. The interested party/applicant has filed a Chamber Summons application dated 20th March, 2023 pursuant to the provisions of Order 1 Rule 14 of the Civil Procedure Rules, 2010 seeking the following orders -
i) That this Honourable Court do strike out the name of the interested party/applicant from this suit; and
ii) The costs of this application be borne by the plaintiff/respondent.
2. The application is grounded on the grounds on the face of the Motion and is supported by an affidavit sworn on 20th March, 2023 by Paul Kipkemoi Too, the defendant herein, who is one of the Administrators of the interested party/applicant. In opposition thereto, the plaintiff filed a replying affidavit sworn on 12th April, 2023 by Charles Kamari, the plaintiff herein.
3. The instant application was canvassed by way of written submissions. The interested party/applicant’s submissions were filed on 14th June, 2023 by the law firm of Kipkenda & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kariuki, Kiplang’at, Lesaigor & Associates Advocates on 21st June, 2023.
4. Mr. Wachira, learned Counsel for the interested party cited the provisions of Order 1 Rule 14 of the Civil Procedure Rules 2010, definition of garnishee in the Black’s Law Dictionary 8th Edition, as well as the case of Ecobank Kenya Ltd v True North Construction Company Limited & another [2018] eKLR, in submitting that that joinder of the interested party in this suit is meant to garnish what the plaintiff believes is due and owing to the defendant from the estate of his late father the late Noah Too (deceased). Counsel further submitted that the instant application is premature since there is no judgment creditor and/or judgment debtor. He stated that in addition, it is misconceived as it assumes that judgment shall be entered for the plaintiff as against the defendant.
5. Counsel contended that such alleged indebtedness by the interested party to the defendant may be disputed calling into application the provisions of Order 23 Rule 5 of the Civil Procedure Rules, 2010, and as such, joinder of the interested party at this stage of the proceedings will deny it an opportunity to dispute liability if it so wishes.
6. Mr. Kariuki, learned Counsel for the plaintiff submitted that the defendant who is also an Administrator of the estate of Noah Arap Too (deceased) got into a debt repayment agreement with the plaintiff, where it was agreed that since the defendant is a beneficiary of the said estate, the debt would be repaid in full once the defendant got his share of the estate. Counsel indicated that the grant in respect of the estate of the deceased was confirmed on 23rd September, 2019, with the defendant getting his share of the estate. That thereafter, the plaintiff issued the defendant with a demand letter through his Advocates on record, who are also the Advocates on record for the interested party, and that the said Advocates gave an undertaking to settle the debt due to the plaintiff from the defendant, once the defendant received his share from the proceeds of sale of L.R No. 1870/II/359 and L.R No. 1870/II/376 which are part of the deceased’s estate.
7. He further submitted that the interested party has admitted being part of the debt settlement agreement that the plaintiff seeks to enforce in this suit. He stated that the interested party is a relevant party to these proceedings since payment of the debt due to the plaintiff is dependent on the defendant getting his share of the deceased’s estate. Counsel referred to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) definition of an interested party and further stated that the interested party herein has not been joined as a garnishee as no judgment has been entered against the defendant, but it has been joined because it has an interest in this suit having issued undertakings for payment of the debt due to the plaintiff.
8. Mr. Kariuki relied on the Black’s Law Dictionary 9th Edition definition of an interested party at page 1232 and the case of Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR and contended that the interested party having participated in the negotiations that took place between the plaintiff and the defendant, is not only a relevant party in determining the questions before this Court but will also be bound by the decision of this Court. To this end, he referred to the provisions of Order 1 Rule 10(2) of the Civil Procedure Rules 2010 and the Court of Appeal case of JMK v MWM & another [2015] eKLR. He asserted that the interested party has not denied holding assets of the defendant and issuing various undertakings on his behalf thus it is likely to be affected by the outcome of this suit.
9. It was submitted by Counsel that in the event the application herein is allowed, the plaintiff stands to suffer great prejudice since the interested party may dispose of the assets belonging to the defendant thus it is in the interest of justice that the interested party remains a part of these proceedings. Further, that part of the prayers sought in the plaintiff’s plaint is for the Administrators of the deceased’s estate to transfer assets in the value of Kshs. 27,764,360.00, plus interest at 10% per annum from the date of demand in settlement of the debt, and that if the said prayer is granted, it will adversely affect the interested party’s interests hence the said party should be heard by this Court on any issues it may have against the said prayer as made by the plaintiff.
ANALYSIS AND DETERMINATION.
10. I have considered the instant application, the grounds on the face of it and the affidavit filed in support thereof, the replying affidavit by the plaintiff and the written submissions by Counsel for the parties. The issue that arises for determination is whether the interested party should be struck out from the suit in issue.
11. In the affidavit filed by the interested party sworn by Paul Kipkemoi Too, he deposed that joinder of the interested party at this stage is premature as it is based on the assumption that judgment shall be entered for the plaintiff as against the defendant.
12. He averred that joinder of the interested party to these proceedings is akin to the filing of garnishee proceedings in execution of a decree where the Court directs a Third Party to pay to the judgment-creditor monies it is owed by the former.
13. It was stated by the interested party that save for the premature order sought in the plaint, where the plaintiff seeks to have the interested party satisfy any judgment sums that may awarded to him, which prayer is premature, there is no other relief sought against the interested party thus its joinder to the proceedings is unwarranted.
14. Paul Kipkemoi Too asserted that the plaint as filed discloses no cause of action against the interested party, and in any event, the interested party is a stranger to the said suit, hence the plaintiff has no claimable relief against it at this stage to warrant it to remain in the suit.
15. The plaintiff in his replying affidavit deposed that he executed a debt settlement agreement with the defendant on 26th February, 2018, which stated in part that the defendant is a beneficiary of the deceased’s estate and that the parties agreed that the debt would be paid in full once the debtor receives his share of the said estate.
16. He averred that the agreement which he seeks to enforce in this suit involves the interested party as the outstanding amount will be recovered from the deceased’s estate, where the defendant is one of the Administrators. The plaintiff further averred that the defendant and the interested party were represented by the same firm of Advocates when executing the debt settlement agreement, thus the interested party is a necessary party to the suit.
17. It was stated by the plaintiff that the interested party has been involved in every step of negotiations between him and the defendant thus it is privy to all the said negotiations including the allegations contained in paragraphs 16,17,18, 19 & 20 of the defendant’s statement of defence.
18. He further stated that a party may be joined to a suit not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the matter.
19. He contended that in considering the application herein, this Court should consider whether the interested party will be reasonably affected by the pending litigation, whether it will suffer direct prejudice and the practicability of execution of the orders sought in the main suit, in the event the said suit is successful.
20. The plaintiff deposed that joinder of the interested party to the suit will save precious judicial time and resources since he will not have to file a separate suit for execution of the orders of this Court, since the subject matter is the same. He contended that the interested party has not pleaded any prejudice or irreparable damage that it might suffer that cannot be adequately compensated by an award of costs, in the event it is found that it is not a necessary party to the suit.
Whether the interested party should be struck out from the suit in issue.
21. The interested party’s case is that it should be struck out of the suit in issue since the plaintiff’s plaint discloses no reasonable cause of action against it save for the prayer to have it satisfy any judgment sums that may awarded to the plaintiff, which prayer is premature. It was submitted by the interested party that the application herein is not only based on the assumption that judgment shall be entered for the plaintiff as against the defendant but is also akin to garnishee proceedings in execution of a decree, yet there is no judgment-debtor and/or judgment-creditor in the case at this juncture.
22. The plaintiff on the other hand contends that the interested party is not only a relevant party in determining the questions before this Court but will also be bound by the decision of this Court. This is because the interested party is privy to all negotiations between the plaintiff and the defendant with regard to the debt owed to the plaintiff by the defendant, it is part of the debt settlement agreement, and its Advocates on record gave the plaintiff an undertaking to settle the debt due to the plaintiff from the defendant once the defendant received his share from the proceeds of the sale of L.R No. 1870/II/359 and L.R No. 1870/II/376 ,which are part of the deceased’s estate.
23. The plaintiff submitted that the interested party’s presence is necessary to these proceedings so as to enable the Court to effectually and completely adjudicate upon, and settle all the questions involved in the matter.
24. The application herein has been brought under the provisions of Order 1 Rule 14 of the Civil Procedure Rules, 2010, which states as hereunder -
“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.”
25. In determining the instant application, this Court is guided by the provisions of Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, which states the following-
“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.”
26. It is evident from the above provisions that this Court has the jurisdiction and discretion to either have a party improperly joined in a suit, struck out from the proceedings, or to have a necessary party joined in the proceedings. This Court adopts the definition of an interested party as spelt out in Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 relied on by the Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR, which states that -
“interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”
27. The guiding principles to be considered when dealing with an application for joinder of an interested party to a suit were articulated by the Supreme Court of Kenya in the decision in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae) [2017] eKLR, with reference to Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR, as follows:
“(i) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral;
(ii) The prejudice to be suffered by the intended interested party in case of non-joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote; and
(iii) Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
28. In light of the above decision, in determining whether the interested party should be struck out from these proceedings, this Court should consider the following elements-
i) Whether the presence of the interested party in these proceedings will assist this court in the effective and effectual determination of all questions arising in this suit;
ii) Whether the interested party herein has any identifiable stake, legal interest or duty in the proceedings; and
iii) Whether the interested party herein is likely to suffer any prejudice by participating in these proceedings.
29. It is not disputed that the plaintiff has no cause of action against the interested party save for the prayer that the Administrators of the estate of Noah Arap Too (deceased) transfer assets in the value of Kshs. 27,764,360.00 plus interest at 10% per annum from the date of demand, in settlement of the debt due to the plaintiff, from the defendant. On perusal of the documents annexed to the plaintiff’s replying affidavit, it is evident that the defendant and the interested party were at one point represented by the same firm of Advocates. The said firm of Advocates gave an undertaking to the plaintiff to settle the debt due from the defendant, once the defendant receives his share of proceeds from the sale of L.R No. 1870/II/359 and L.R No. 1870/II/376, which are part of the deceased’s estate on behalf of the defendant, and not the interested party.
30. It is also evident that the interested party was not a party to the debt repayment agreement dated 26th February, 2018, as the said agreement was between the plaintiff and the defendant herein. In my considered view, just because the defendant is also one of the Administrators of the deceased’s estate cannot lead to the assumption that he entered into the said debt repayment and instructed his Advocates to give an undertaking to the plaintiff’s Advocates for payment of the sums owed to the plaintiff by him, on his own behalf, and on behalf of the Administrators of the deceased’s estate. The plaintiff would have to tender evidence to that effect. For this reason, the interested party cannot be bound by the terms of the said debt repayment agreement and/or undertaking. The plaintiff averred that he filed this suit as a result of the undertaking given to his Advocates on record by the law firm of Kipkenda & Company Advocates and in a bid to enforce the debt repayment agreement dated 26th February, 2018 between him and the defendant.
31. The plaintiff has however not produced any evidence in support of the allegation that that the interested party is privy to and/or participated in the negotiations that took place between him and the defendant, and that the interested party issued various undertakings to the plaintiff on behalf of the defendant towards settlement of the monies owed to the plaintiff by the defendant. I hereby conclude from the analysis of the depositions before this Court that the presence of the interested party in the suit will not assist this Court in the effective and effectual determination of all questions in controversy between the plaintiff and the defendant.
32. As a result of the above finding, this Court agrees with Counsel for the interested party that joining the interested party to the suit and compelling it to pay the debt owed to the plaintiff by the defendant on the defendant’s behalf is based on the assumption that judgment shall be entered for the plaintiff as against the defendant, which is akin to garnishee proceedings, yet the plaintiff’s suit is yet to be heard and determined and there is no judgment debtor and judgment creditor in this suit.
33. This Court finds that joining the interested party to the suit is premature and the prayer sought against the interested party in the plaintiff’s plaint as prayer No. (c) is unwarranted. In view of the finding that the interested party does not have any recognizable stake or legal interest in the suit, I am persuaded that it will suffer prejudice by participating in the said suit since it will incur unnecessary costs in terms of legal fees for legal representation and Court fees.
34. In conclusion, this Court’s finding is that the Chamber Summons dated 20th March, 2023 is merited. It is hereby allowed as prayed. This Court further orders that the plaintiff shall forthwith amend his plaint dated 30th August, 2022, within thirty (30) days to reflect the changes brought about as a result of this ruling.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 15th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the interested parties/applicants
No appearance for the plaintiff
No appearance for the defendant
Ms B. Wokabi – Court Assistant.
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
HCCOMM NO. E337 OF 2022
CHARLES KAMARI………………………….….PLAINTIFF/RESPONDENT
-VERSUS-
PAUL KIPKEMOI TOO……………………….DEFENDANT/RESPONDENT
-AND-
ESTHER CHEPKOECH TOO
ESTHER CHEMUTAI KURUMEI
PAUL KIPKEMOI TOO
EVERLYNE CHEPKURUI TOO
(THE ADMINISTRATORS OF THE
ESTATE OF NOAH NONDIN ARAP
TOO (DECEASED)……………………..INTERESTED PARTY/APPLICANT
RULING
1. The interested party/applicant has filed a Chamber Summons application dated 20th March, 2023 pursuant to the provisions of Order 1 Rule 14 of the Civil Procedure Rules, 2010 seeking the following orders -
i) That this Honourable Court do strike out the name of the interested party/applicant from this suit; and
ii) The costs of this application be borne by the plaintiff/respondent.
2. The application is grounded on the grounds on the face of the Motion and is supported by an affidavit sworn on 20th March, 2023 by Paul Kipkemoi Too, the defendant herein, who is one of the Administrators of the interested party/applicant. In opposition thereto, the plaintiff filed a replying affidavit sworn on 12th April, 2023 by Charles Kamari, the plaintiff herein.
3. The instant application was canvassed by way of written submissions. The interested party/applicant’s submissions were filed on 14th June, 2023 by the law firm of Kipkenda & Company Advocates, whereas the plaintiff’s submissions were filed by the law firm of Kariuki, Kiplang’at, Lesaigor & Associates Advocates on 21st June, 2023.
4. Mr. Wachira, learned Counsel for the interested party cited the provisions of Order 1 Rule 14 of the Civil Procedure Rules 2010, definition of garnishee in the Black’s Law Dictionary 8th Edition, as well as the case of Ecobank Kenya Ltd v True North Construction Company Limited & another [2018] eKLR, in submitting that that joinder of the interested party in this suit is meant to garnish what the plaintiff believes is due and owing to the defendant from the estate of his late father the late Noah Too (deceased). Counsel further submitted that the instant application is premature since there is no judgment creditor and/or judgment debtor. He stated that in addition, it is misconceived as it assumes that judgment shall be entered for the plaintiff as against the defendant.
5. Counsel contended that such alleged indebtedness by the interested party to the defendant may be disputed calling into application the provisions of Order 23 Rule 5 of the Civil Procedure Rules, 2010, and as such, joinder of the interested party at this stage of the proceedings will deny it an opportunity to dispute liability if it so wishes.
6. Mr. Kariuki, learned Counsel for the plaintiff submitted that the defendant who is also an Administrator of the estate of Noah Arap Too (deceased) got into a debt repayment agreement with the plaintiff, where it was agreed that since the defendant is a beneficiary of the said estate, the debt would be repaid in full once the defendant got his share of the estate. Counsel indicated that the grant in respect of the estate of the deceased was confirmed on 23rd September, 2019, with the defendant getting his share of the estate. That thereafter, the plaintiff issued the defendant with a demand letter through his Advocates on record, who are also the Advocates on record for the interested party, and that the said Advocates gave an undertaking to settle the debt due to the plaintiff from the defendant, once the defendant received his share from the proceeds of sale of L.R No. 1870/II/359 and L.R No. 1870/II/376 which are part of the deceased’s estate.
7. He further submitted that the interested party has admitted being part of the debt settlement agreement that the plaintiff seeks to enforce in this suit. He stated that the interested party is a relevant party to these proceedings since payment of the debt due to the plaintiff is dependent on the defendant getting his share of the deceased’s estate. Counsel referred to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) definition of an interested party and further stated that the interested party herein has not been joined as a garnishee as no judgment has been entered against the defendant, but it has been joined because it has an interest in this suit having issued undertakings for payment of the debt due to the plaintiff.
8. Mr. Kariuki relied on the Black’s Law Dictionary 9th Edition definition of an interested party at page 1232 and the case of Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR and contended that the interested party having participated in the negotiations that took place between the plaintiff and the defendant, is not only a relevant party in determining the questions before this Court but will also be bound by the decision of this Court. To this end, he referred to the provisions of Order 1 Rule 10(2) of the Civil Procedure Rules 2010 and the Court of Appeal case of JMK v MWM & another [2015] eKLR. He asserted that the interested party has not denied holding assets of the defendant and issuing various undertakings on his behalf thus it is likely to be affected by the outcome of this suit.
9. It was submitted by Counsel that in the event the application herein is allowed, the plaintiff stands to suffer great prejudice since the interested party may dispose of the assets belonging to the defendant thus it is in the interest of justice that the interested party remains a part of these proceedings. Further, that part of the prayers sought in the plaintiff’s plaint is for the Administrators of the deceased’s estate to transfer assets in the value of Kshs. 27,764,360.00, plus interest at 10% per annum from the date of demand in settlement of the debt, and that if the said prayer is granted, it will adversely affect the interested party’s interests hence the said party should be heard by this Court on any issues it may have against the said prayer as made by the plaintiff.
ANALYSIS AND DETERMINATION.
10. I have considered the instant application, the grounds on the face of it and the affidavit filed in support thereof, the replying affidavit by the plaintiff and the written submissions by Counsel for the parties. The issue that arises for determination is whether the interested party should be struck out from the suit in issue.
11. In the affidavit filed by the interested party sworn by Paul Kipkemoi Too, he deposed that joinder of the interested party at this stage is premature as it is based on the assumption that judgment shall be entered for the plaintiff as against the defendant.
12. He averred that joinder of the interested party to these proceedings is akin to the filing of garnishee proceedings in execution of a decree where the Court directs a Third Party to pay to the judgment-creditor monies it is owed by the former.
13. It was stated by the interested party that save for the premature order sought in the plaint, where the plaintiff seeks to have the interested party satisfy any judgment sums that may awarded to him, which prayer is premature, there is no other relief sought against the interested party thus its joinder to the proceedings is unwarranted.
14. Paul Kipkemoi Too asserted that the plaint as filed discloses no cause of action against the interested party, and in any event, the interested party is a stranger to the said suit, hence the plaintiff has no claimable relief against it at this stage to warrant it to remain in the suit.
15. The plaintiff in his replying affidavit deposed that he executed a debt settlement agreement with the defendant on 26th February, 2018, which stated in part that the defendant is a beneficiary of the deceased’s estate and that the parties agreed that the debt would be paid in full once the debtor receives his share of the said estate.
16. He averred that the agreement which he seeks to enforce in this suit involves the interested party as the outstanding amount will be recovered from the deceased’s estate, where the defendant is one of the Administrators. The plaintiff further averred that the defendant and the interested party were represented by the same firm of Advocates when executing the debt settlement agreement, thus the interested party is a necessary party to the suit.
17. It was stated by the plaintiff that the interested party has been involved in every step of negotiations between him and the defendant thus it is privy to all the said negotiations including the allegations contained in paragraphs 16,17,18, 19 & 20 of the defendant’s statement of defence.
18. He further stated that a party may be joined to a suit not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the matter.
19. He contended that in considering the application herein, this Court should consider whether the interested party will be reasonably affected by the pending litigation, whether it will suffer direct prejudice and the practicability of execution of the orders sought in the main suit, in the event the said suit is successful.
20. The plaintiff deposed that joinder of the interested party to the suit will save precious judicial time and resources since he will not have to file a separate suit for execution of the orders of this Court, since the subject matter is the same. He contended that the interested party has not pleaded any prejudice or irreparable damage that it might suffer that cannot be adequately compensated by an award of costs, in the event it is found that it is not a necessary party to the suit.
Whether the interested party should be struck out from the suit in issue.
21. The interested party’s case is that it should be struck out of the suit in issue since the plaintiff’s plaint discloses no reasonable cause of action against it save for the prayer to have it satisfy any judgment sums that may awarded to the plaintiff, which prayer is premature. It was submitted by the interested party that the application herein is not only based on the assumption that judgment shall be entered for the plaintiff as against the defendant but is also akin to garnishee proceedings in execution of a decree, yet there is no judgment-debtor and/or judgment-creditor in the case at this juncture.
22. The plaintiff on the other hand contends that the interested party is not only a relevant party in determining the questions before this Court but will also be bound by the decision of this Court. This is because the interested party is privy to all negotiations between the plaintiff and the defendant with regard to the debt owed to the plaintiff by the defendant, it is part of the debt settlement agreement, and its Advocates on record gave the plaintiff an undertaking to settle the debt due to the plaintiff from the defendant once the defendant received his share from the proceeds of the sale of L.R No. 1870/II/359 and L.R No. 1870/II/376 ,which are part of the deceased’s estate.
23. The plaintiff submitted that the interested party’s presence is necessary to these proceedings so as to enable the Court to effectually and completely adjudicate upon, and settle all the questions involved in the matter.
24. The application herein has been brought under the provisions of Order 1 Rule 14 of the Civil Procedure Rules, 2010, which states as hereunder -
“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.”
25. In determining the instant application, this Court is guided by the provisions of Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, which states the following-
“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.”
26. It is evident from the above provisions that this Court has the jurisdiction and discretion to either have a party improperly joined in a suit, struck out from the proceedings, or to have a necessary party joined in the proceedings. This Court adopts the definition of an interested party as spelt out in Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 relied on by the Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR, which states that -
“interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”
27. The guiding principles to be considered when dealing with an application for joinder of an interested party to a suit were articulated by the Supreme Court of Kenya in the decision in Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae) [2017] eKLR, with reference to Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR, as follows:
“(i) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral;
(ii) The prejudice to be suffered by the intended interested party in case of non-joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote; and
(iii) Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
28. In light of the above decision, in determining whether the interested party should be struck out from these proceedings, this Court should consider the following elements-
i) Whether the presence of the interested party in these proceedings will assist this court in the effective and effectual determination of all questions arising in this suit;
ii) Whether the interested party herein has any identifiable stake, legal interest or duty in the proceedings; and
iii) Whether the interested party herein is likely to suffer any prejudice by participating in these proceedings.
29. It is not disputed that the plaintiff has no cause of action against the interested party save for the prayer that the Administrators of the estate of Noah Arap Too (deceased) transfer assets in the value of Kshs. 27,764,360.00 plus interest at 10% per annum from the date of demand, in settlement of the debt due to the plaintiff, from the defendant. On perusal of the documents annexed to the plaintiff’s replying affidavit, it is evident that the defendant and the interested party were at one point represented by the same firm of Advocates. The said firm of Advocates gave an undertaking to the plaintiff to settle the debt due from the defendant, once the defendant receives his share of proceeds from the sale of L.R No. 1870/II/359 and L.R No. 1870/II/376, which are part of the deceased’s estate on behalf of the defendant, and not the interested party.
30. It is also evident that the interested party was not a party to the debt repayment agreement dated 26th February, 2018, as the said agreement was between the plaintiff and the defendant herein. In my considered view, just because the defendant is also one of the Administrators of the deceased’s estate cannot lead to the assumption that he entered into the said debt repayment and instructed his Advocates to give an undertaking to the plaintiff’s Advocates for payment of the sums owed to the plaintiff by him, on his own behalf, and on behalf of the Administrators of the deceased’s estate. The plaintiff would have to tender evidence to that effect. For this reason, the interested party cannot be bound by the terms of the said debt repayment agreement and/or undertaking. The plaintiff averred that he filed this suit as a result of the undertaking given to his Advocates on record by the law firm of Kipkenda & Company Advocates and in a bid to enforce the debt repayment agreement dated 26th February, 2018 between him and the defendant.
31. The plaintiff has however not produced any evidence in support of the allegation that that the interested party is privy to and/or participated in the negotiations that took place between him and the defendant, and that the interested party issued various undertakings to the plaintiff on behalf of the defendant towards settlement of the monies owed to the plaintiff by the defendant. I hereby conclude from the analysis of the depositions before this Court that the presence of the interested party in the suit will not assist this Court in the effective and effectual determination of all questions in controversy between the plaintiff and the defendant.
32. As a result of the above finding, this Court agrees with Counsel for the interested party that joining the interested party to the suit and compelling it to pay the debt owed to the plaintiff by the defendant on the defendant’s behalf is based on the assumption that judgment shall be entered for the plaintiff as against the defendant, which is akin to garnishee proceedings, yet the plaintiff’s suit is yet to be heard and determined and there is no judgment debtor and judgment creditor in this suit.
33. This Court finds that joining the interested party to the suit is premature and the prayer sought against the interested party in the plaintiff’s plaint as prayer No. (c) is unwarranted. In view of the finding that the interested party does not have any recognizable stake or legal interest in the suit, I am persuaded that it will suffer prejudice by participating in the said suit since it will incur unnecessary costs in terms of legal fees for legal representation and Court fees.
34. In conclusion, this Court’s finding is that the Chamber Summons dated 20th March, 2023 is merited. It is hereby allowed as prayed. This Court further orders that the plaintiff shall forthwith amend his plaint dated 30th August, 2022, within thirty (30) days to reflect the changes brought about as a result of this ruling.
It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 15th day of December, 2023. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
No appearance for the interested parties/applicants
No appearance for the plaintiff
No appearance for the defendant
Ms B. Wokabi – Court Assistant.