The application is dated 8th October 2022 and is brought under Order 1 Rule 3 & 10, Order 8 Rule 3 & 5, Order 51 Rule 1 of the Civil Procedure Rules 2010, and Sections 1A, 1B, 3A and 100 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya seeking the following orders;
1. That Javisapa Enterprises Limited having been joined in this suit as an Interested Party by Orders of this Court issued on 10th November 2022 be made the 4th Defendant to this suit.
2. That this Honourable Court be pleased to join Usercare Limited as the 5th Defendant in this suit.
3. That the Honourable Court be pleased to grant leave to the Plaintiff to amend the Plaint dated 3rd August 2022 as per the attached draft Amended Plaint.
4. That the costs of this application be in the cause.
The application is based on the grounds that the Proposed 4th and 5th Defendants have interfered with the ownership of the suit property. The Proposed 4th Defendant has told this Court, and it is on record, that it sold the suit property to the Proposed 5th Defendant through public auction conducted on 2nd August 2023 which particulars are well captured in it Chamber Summons Application dated 15th March 2024 duly filed before this Honourable Court. Upon the purported sale being conducted, the Proposed 5th Defendant went ahead to mutate/subdivide the suit property into plots for purposes of disposing the same to unsuspecting citizens. Usercare Limited has now subdivided the suit property herein and in doing so it has done away with the original title, Mavoko Town Block 3/2104 and mutated them into new numbers 110075-110296. Owing to the changes that have occurred directly affecting the subject matter of this suit the Plaintiffs intend to amend their Plaint to incorporate the current state of the suit property and to seek substantive/appropriate reliefs against Javisapa Enterprises Limited and Usercare Limited. The Respondents will not suffer any real prejudice if this Application is allowed. It is in the interest of justice that the said Application be allowed as prayed for the effectual determination of this suit.
This court has considered the application and the submissions therein. As to whether the Applicant ought to be enjoined in the suit as a Plaintiff, Defendant or an Interested Party, the Court is guided by Order 1 Rule 10(2) of the Civil Procedure Rules which states;
“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”.
The Supreme Court decision in Communications Commission of Kenya And 4 Others vs Royal Media Services Limited & 7 Others Petition No. 15 OF (2014) eKLR where the Court pronounced itself on who an Interested Party is and held as follows:
“In determining whether the applicant should be admitted into these proceedings as an interested party, we are guided by this Court’s decision 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. Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
(i) Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;
(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) Joinder to prevent a likely course of proliferated litigation.
We ask ourselves the following questions:
a) what is the intended party’s state and relevance in the proceedings and
b) will the intended interested party suffer any prejudice if denied joinder.?”
It is therefore clear that the parties who should be made parties to a suit are persons who are necessary for a complete and effectual adjudication of disputes before the court.
In the present application, the Applicants state that the Interested Party/Proposed Defendant has stated under oath that it sold all the land known as Mavoko Town Block 3/2104 to the proposed 5th Defendant while the present proceedings were still ongoing. The proposed 5th Defendant has gone further and subdivided the same into 221 plots with a clear intent of disposing the same to third parties.
The Proposed 5th Defendant states that it is the lawful bona fide owner of land known as Mavoko Town Block 3/2104 having acquired the same in good faith and for valuable consideration. That the same was acquired through a public auction.
In the case of JMK v MWM & another (2015) eKLR, the court stressed that;
“…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”.
I find that the proposed 4th and 5th Defendants are necessary parties in this suit to enable the court to effectively and completely adjudicate and settle all the questions involved in the suit. I find this application is merited and l grant it as prayed. Costs to be in the cause.
It is so ordered.
1. That Javisapa Enterprises Limited having been joined in this suit as an Interested Party by Orders of this Court issued on 10th November 2022 be made the 4th Defendant to this suit.
2. That this Honourable Court be pleased to join Usercare Limited as the 5th Defendant in this suit.
3. That the Honourable Court be pleased to grant leave to the Plaintiff to amend the Plaint dated 3rd August 2022 as per the attached draft Amended Plaint.
4. That the costs of this application be in the cause.
The application is based on the grounds that the Proposed 4th and 5th Defendants have interfered with the ownership of the suit property. The Proposed 4th Defendant has told this Court, and it is on record, that it sold the suit property to the Proposed 5th Defendant through public auction conducted on 2nd August 2023 which particulars are well captured in it Chamber Summons Application dated 15th March 2024 duly filed before this Honourable Court. Upon the purported sale being conducted, the Proposed 5th Defendant went ahead to mutate/subdivide the suit property into plots for purposes of disposing the same to unsuspecting citizens. Usercare Limited has now subdivided the suit property herein and in doing so it has done away with the original title, Mavoko Town Block 3/2104 and mutated them into new numbers 110075-110296. Owing to the changes that have occurred directly affecting the subject matter of this suit the Plaintiffs intend to amend their Plaint to incorporate the current state of the suit property and to seek substantive/appropriate reliefs against Javisapa Enterprises Limited and Usercare Limited. The Respondents will not suffer any real prejudice if this Application is allowed. It is in the interest of justice that the said Application be allowed as prayed for the effectual determination of this suit.
This court has considered the application and the submissions therein. As to whether the Applicant ought to be enjoined in the suit as a Plaintiff, Defendant or an Interested Party, the Court is guided by Order 1 Rule 10(2) of the Civil Procedure Rules which states;
“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”.
The Supreme Court decision in Communications Commission of Kenya And 4 Others vs Royal Media Services Limited & 7 Others Petition No. 15 OF (2014) eKLR where the Court pronounced itself on who an Interested Party is and held as follows:
“In determining whether the applicant should be admitted into these proceedings as an interested party, we are guided by this Court’s decision 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. Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
(i) Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;
(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) Joinder to prevent a likely course of proliferated litigation.
We ask ourselves the following questions:
a) what is the intended party’s state and relevance in the proceedings and
b) will the intended interested party suffer any prejudice if denied joinder.?”
It is therefore clear that the parties who should be made parties to a suit are persons who are necessary for a complete and effectual adjudication of disputes before the court.
In the present application, the Applicants state that the Interested Party/Proposed Defendant has stated under oath that it sold all the land known as Mavoko Town Block 3/2104 to the proposed 5th Defendant while the present proceedings were still ongoing. The proposed 5th Defendant has gone further and subdivided the same into 221 plots with a clear intent of disposing the same to third parties.
The Proposed 5th Defendant states that it is the lawful bona fide owner of land known as Mavoko Town Block 3/2104 having acquired the same in good faith and for valuable consideration. That the same was acquired through a public auction.
In the case of JMK v MWM & another (2015) eKLR, the court stressed that;
“…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”.
I find that the proposed 4th and 5th Defendants are necessary parties in this suit to enable the court to effectively and completely adjudicate and settle all the questions involved in the suit. I find this application is merited and l grant it as prayed. Costs to be in the cause.
It is so ordered.