Introduction and Background
1. The application before this Court is dated 30th October 2024. It is brought by the interested party seeking to strike out their name from the proceedings. The application is unopposed, but that in itself does not relieve the Court from its duty to determine whether the application is meritorious.
2. The interested party contends that it has been improperly enjoined to these proceedings as is has no contractual relationship with the plaintiff, and further that it is not privy to the agreement allegedly breached by the defendant. It argues that there is no cause of action disclosed against it and that it ought therefore to be struck out of these proceedings.
Analysis and Determination
3. I have carefully considered the pleadings, including the plaint dated 15th September 2024. At paragraph 7 thereof, the plaintiff acknowledges that the interested party is the proprietor of a vault in which 65 kilograms of semi-refined gold bars are being held. The plaintiff alleges that the defendant expressed interest in purchasing the said gold at a price of USD 1.2 million, which purchase price is yet to be paid to the plaintiff.
4. The test for joinder of parties is found in Order 1 Rule 10(2) of the Civil Procedure Rules which provides:
“The court may at any stage of the proceedings, either upon or without the application of either party... order that the name of any party improperly joined... be struck out, and the name of any person who ought to have been joined... be added...”
5. The threshold is whether the presence of a party is necessary for the effectual and complete adjudication of the issues before the Court. This principle was aptly captured in Pizza Harvest Ltd v Felix Midigo & Another [2013] eKLR, where the Court held that
“An interested party may be directly or indirectly affected by the issue or matter in contention to qualify as an interested party. An interested party may also be defined as a party who has a recognizable stake in the outcome of a matter before a court, but may not be directly involved in the litigation process. (emphasis mine)…. It should not be possible to pass an effective decree in the absence of that party. (citing Deputy Commissioner, Hardoi v Rama Krishna, AIR 1953 SC 521).
6. Crucially, the plaintiff has sought direct and substantive relief against the interested party. These include a permanent injunction restraining the interested party from releasing or granting the defendant access to the safe or its contents, save as directed by the Court and an order directing the interested party to facilitate access to the safe and to release the 65 kilograms of gold stored therein to the plaintiff.
7. These prayers are not incidental, nor are they peripheral to the cause of action. They go to the very heart of the relief sought by the plaintiff. The interested party’s role in the custody and control of the gold makes it an indispensable party to these proceedings. Without its participation, any judgment rendered by this Court in favour of the plaintiff, if at all, would be incapable of enforcement.
8. While the interested party denies any contractual nexus with the plaintiff, the plaintiff does not premise its claim against the interested party on contract, but rather on the interested party’s control and possession of the subject matter of the suit. The doctrine of privity of contract, though important, is not dispositive in this context. The court is not being asked to enforce contractual obligations against the interested party, but to regulate the control of property that is the subject of litigation.
9. In my view, even where no contract exists between a plaintiff and the person holding the property subject of the dispute, the court may restrain such a party if their actions threaten to defeat the ends of justice. Moreover, the fact that the interested party holds the gold on behalf of the defendant, if proven, may give rise to obligations akin to those of a bailee, trustee, or constructive custodian. In other words, a person in possession of property on behalf of another cannot ignore claims to the property without resolution of the dispute. Possession may impose obligations on them by extension.
10. In light of the reliefs sought and the nature of the plaintiff’s claim, I am satisfied that the interested party is properly enjoined. Their participation is necessary for the just and complete adjudication of the matter, particularly given that the plaintiff is seeking coercive orders against them. To strike them out at this stage would amount to shutting out a necessary party whose cooperation is essential to the enforcement of any judgment that may be issued.
Conclusion and Final Orders
11. The application dated 30th October 2024 is without merit and is accordingly dismissed. Given that the application was unopposed, I make no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 8TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. The application before this Court is dated 30th October 2024. It is brought by the interested party seeking to strike out their name from the proceedings. The application is unopposed, but that in itself does not relieve the Court from its duty to determine whether the application is meritorious.
2. The interested party contends that it has been improperly enjoined to these proceedings as is has no contractual relationship with the plaintiff, and further that it is not privy to the agreement allegedly breached by the defendant. It argues that there is no cause of action disclosed against it and that it ought therefore to be struck out of these proceedings.
Analysis and Determination
3. I have carefully considered the pleadings, including the plaint dated 15th September 2024. At paragraph 7 thereof, the plaintiff acknowledges that the interested party is the proprietor of a vault in which 65 kilograms of semi-refined gold bars are being held. The plaintiff alleges that the defendant expressed interest in purchasing the said gold at a price of USD 1.2 million, which purchase price is yet to be paid to the plaintiff.
4. The test for joinder of parties is found in Order 1 Rule 10(2) of the Civil Procedure Rules which provides:
“The court may at any stage of the proceedings, either upon or without the application of either party... order that the name of any party improperly joined... be struck out, and the name of any person who ought to have been joined... be added...”
5. The threshold is whether the presence of a party is necessary for the effectual and complete adjudication of the issues before the Court. This principle was aptly captured in Pizza Harvest Ltd v Felix Midigo & Another [2013] eKLR, where the Court held that
“An interested party may be directly or indirectly affected by the issue or matter in contention to qualify as an interested party. An interested party may also be defined as a party who has a recognizable stake in the outcome of a matter before a court, but may not be directly involved in the litigation process. (emphasis mine)…. It should not be possible to pass an effective decree in the absence of that party. (citing Deputy Commissioner, Hardoi v Rama Krishna, AIR 1953 SC 521).
6. Crucially, the plaintiff has sought direct and substantive relief against the interested party. These include a permanent injunction restraining the interested party from releasing or granting the defendant access to the safe or its contents, save as directed by the Court and an order directing the interested party to facilitate access to the safe and to release the 65 kilograms of gold stored therein to the plaintiff.
7. These prayers are not incidental, nor are they peripheral to the cause of action. They go to the very heart of the relief sought by the plaintiff. The interested party’s role in the custody and control of the gold makes it an indispensable party to these proceedings. Without its participation, any judgment rendered by this Court in favour of the plaintiff, if at all, would be incapable of enforcement.
8. While the interested party denies any contractual nexus with the plaintiff, the plaintiff does not premise its claim against the interested party on contract, but rather on the interested party’s control and possession of the subject matter of the suit. The doctrine of privity of contract, though important, is not dispositive in this context. The court is not being asked to enforce contractual obligations against the interested party, but to regulate the control of property that is the subject of litigation.
9. In my view, even where no contract exists between a plaintiff and the person holding the property subject of the dispute, the court may restrain such a party if their actions threaten to defeat the ends of justice. Moreover, the fact that the interested party holds the gold on behalf of the defendant, if proven, may give rise to obligations akin to those of a bailee, trustee, or constructive custodian. In other words, a person in possession of property on behalf of another cannot ignore claims to the property without resolution of the dispute. Possession may impose obligations on them by extension.
10. In light of the reliefs sought and the nature of the plaintiff’s claim, I am satisfied that the interested party is properly enjoined. Their participation is necessary for the just and complete adjudication of the matter, particularly given that the plaintiff is seeking coercive orders against them. To strike them out at this stage would amount to shutting out a necessary party whose cooperation is essential to the enforcement of any judgment that may be issued.
Conclusion and Final Orders
11. The application dated 30th October 2024 is without merit and is accordingly dismissed. Given that the application was unopposed, I make no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 8TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE