1. Before this court for determination is the applicant’s Notice of motion application dated 8th March 2021 brought pursuant to the provisions of Rules 2 & 7(1) of the Constitution (Protection of Rights and Fundamental Freedoms) Practices & Procedure Rules, 2013, Order 22 rule 10, Order 40 rule 1 & 7, Order 45 rule 1, Order 51 rule 1 of the Civil Procedure Rules, Sections, 3, 3A and 63 (e) of the Civil Procedure Act, Article 40 and 50 of the Constitution of Kenya. of the Advocates Act. The applicant seeks the following orders;
i. Spent.
ii. THAT the intended Interested Party be enjoined as an Interested Party in the suit herein.
iii. THAT this Honourable Court be pleased to issue a temporary injunction order restraining SEDCO Consultants Limited by themselves, their servants, legal representatives, agents, employees and or persons claiming under their behest and or in trust for them or howsoever from trespassing, entering into, remaining upon, alienating, and/or in dealing in any manner whatsoever with the property registered as Title No. C.R. 14354/1 situate in Mombasa.
2. The application is based on the grounds on the face of the motion, and is supported by the annexed affidavit of Shehzad S. Ramji of even date.
3. The basis of the intended interested party’s application is the Order issued on 13th February 2020 by Hon. Lady Justice Okwany in which SEDCO Consultants Limited (hereinafter referred to as SEDCO) was given the mandate to manage the 1st and 2nd Plaintiff’s properties, including L. R No. MN/1/16/2019 situate at Mombasa. The Intended Interested Party alleges that vide a letter dated 20th October 2020, SEDCO threatened to initiate contempt proceedings against them unless it withdraws its security from the subject property, being LR No. MN/1/16/2019. The letter by SEDCO was based on the premise that the subject property was owned by the 1st and 2nd Plaintiffs.
4. It is, however, the Intended Interested Party’s contention that the subject property (LR No MN/1/16/2019), which is registered as Title No. CR. 14357/1 and is owned by the intended interested party. Based on this, it is the Applicant’s prayer that it be joined as an Interested Party in these proceedings to enable it to effectively ventilate its case in respect of the property in question and protect its legal interest accordingly.
5. According to the Applicant, the subject matter of the property does not constitute those owned by the plaintiffs, and thus it is befitting for the same to be expunged from the list of properties set out in the order of 13th February 2020, and SEDCO be estopped from pursuing the intended interested party’s property.
6. In opposition to the application, the Estate Agent filed a Replying affidavit by Paul Rutto, sworn on 18th September 2024. Mr. Rutto avers that the Applicant has not demonstrated that it had any identifiable stake, legal interest, duty, or relevance in the proceedings and does not therefore deserve to be enjoined as an Interested Party.
7. According to Mr. Rutto, the property upon which the Intended Interested Party is laying a claim, being LR No MN/1/16/2019, is registered in the name of the 1st Plaintiff and managed by SEDCO Consultants Limited, and not the Intended Interested Party as claimed in the joinder application.
8. The Estate Agent deposed that as per the documents annexed by the Applicant, the Certificate of Postal Search dated 23rd December 2020 (Annex SSR 10), the property registered as Title No. C.R. 14354/1 -Mombasa, which is the basis of the application for joinder, relates to Plot Number MN/1/1905 and not the L.R. NO. MN/1/16/19, which is the subject of the Order of Hon. Lady Justice Okwany.
9. It is further the position of the Estate Agent that this Court does not have jurisdiction to determine the question of title and ownership to land, as the same is constitutionally vested upon the Environment and Land Court.
10. The Estate Agent therefore maintains that the application dated 8th March 2021 is bereft of merit, frivolous, and should be dismissed with costs.
11. The application was canvassed by way of written submissions. The intended Interested party’s submissions are dated 30th September 2024, whereas the Estate agent’s submissions are dated 21st November 2024, which this court will proceed to consider.
Analysis and determination
12. I have carefully considered the application, the response thereto, and submissions by both the Applicant and the Estate Agent. I find that the only issue for determination is whether the application for joinder of the Intended Interested Party is merited.
13. Joinder of parties is governed by Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010. It states 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 or settle all questions involved in the suit, be added.”
14. It is settled law that the court may at any stage of the proceedings either on application by a party or on its own motion add a party to the suit if such party is necessary for the determination of the issues in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, the issue of joinder of parties is allowed in law and can be done at any state of the proceedings. However, joinder of parties is declined where the cause of action being proposed or the relief being sought is incompatible to or totally different from the existing cause of action or the relief.
15. The determining factor in an application for joinder is that a common question of fact or law would arise between the existing and the intended parties.
16. In the case of Joseph Njau Kingori –vs- Robert Maina Chege & 3 Others [2002] eKLR, Nambuye, J (as she then was) set out the guiding principles for applications seeking joinder of parties as follows:-
“…parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit. Necessary parties who ought to have been joined are parties who are necessary to the constitution of the suit without whom no decree at all can be passed. Therefore in case of a Defendant two conditions must be met: (1) There must be a right to some relief against him in respect of the matter involved in the suit. (2) His presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings. A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognizable in the Court of law being an interest, which the Court will enforce. A person who is only indicated or commercially interested in the proceedings is not entitled to be added as a party. But a person may be added as a Defendant though no relief may be claimed against him provided his presence is proper for a complete and final decision of the question involved in the suit and such a person is called a proper party as distinguished from a necessary party… Order 1 rule 10 allows the Court to add a Defendant on its own motion or upon application by either party either orally or formally by summons in chambers under Order 1 rule 22. Here the party has not moved on its own but has been moved by the intending party on its own formally. The use of the words “either party” denotes that the formal move has to be made by a party already participating in the proceedings and it would mean that an intending party cannot come on his own and choose which position he wants.”
17. It is the Intended Interested Party’s case that it is a necessary party to these proceedings since the Court Order of 13th February 2020 issued by Lady Justice Okwany relates to their property, being property registered as Title No. C.R. 14354/1 situate in Mombasa.
18. The Estate Agent, in response to the allegations, stated that the property claimed to be owned by the Intended Interested Party, being the property registered under Title No. CR 14354/1, relates to Plot No. MN/1/1905, as opposed to Plot No. MN/1/116/19, which is registered under Title No. C.R. 13826, managed by SEDCO Consultants Limited. According to the Estate Agent, these are two separate properties.
19. I have carefully perused the documents and note that, as rightly submitted by the Estate Agent, the parcel of land in the order issued by the Court on 13th February 2020, indeed differs from the one claimed by the Intended Interested Party in its application for joinder.
20. From the application, the Intended Interested Party’s claim is in respect of the property registered as Title No. CR 14354/1. A perusal of the supporting affidavit, and in particular, Annex SSR 10, reveals that Title No. CR 14354/1 relates to Plot No. Plot Number MN/1/1905 and not the L.R. NO. MN/1/16/19, which is the subject of the Order of Hon. Lady Justice Okwany.
21. The above observation, however, is not to say that this Court has assumed jurisdiction over land matters. My finding is based on a simple examination of the documents as presented by the parties in this application for the simple purpose of deciding the application for joinder, and not to interrogate the title and ownership of the subject properties. This Court is fully aware that the latter is a preserve of the Environment and Land Court under Article 162 (2) (b) of the Constitution.
22. Having said so, it is my considered view that the Intended Interested party has failed to satisfy the grounds for joinder. The prayer for joinder, therefore, fails.
23. The Intended Interested Party also prayed for injunctive orders against the Estate Agents. The Court, having pronounced itself on the prayer for joinder, will not proceed to determine the issue of injunction, as it has no legs to stand on.
24. In view of the above findings, the application dated 8th March 2021 for joinder by the Intended Interested Party fails and is hereby dismissed with costs to the Estate Agent.
25. Before I pen off, it is critical to record that in the course of delivering this Ruling, parties brought to my attention that the presence of other two applications (consolidated), both by the Receiver Manager (dated 06.02.2024 and 02.05.2024), which had also been scheduled for Ruling today, 24th April 2025. However, the Ruling on the two applications has not been written due to a mix-up on the part of the Court, for which the Court tenders its sincere apologies. Parties in the meantime agreed to compromise prayer 2 of the Receiver Manager’s application dated 02.05.2024, which is hereby granted as per the consent. A ruling on the other outstanding issues on the two applications will be delivered on 16th June 2025.
Final Orders
26. In view of the above, the following are the final orders of this Court; -
i. The Application dated 8th March 2021 for joinder by the Intended Interested Party fails and is hereby dismissed with costs to the Estate Agent.
ii. Ruling on the applications dated 06.02.2024 and 02.05.2024 (consolidated) by the Receiver Manager will now be delivered on 19th June 2025. In the meantime, prayer 2 of the Receiver Manager’s application dated 02.05.2024 is hereby granted by Consent of the parties.
27. It is so Ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF APRIL, 2025
ADO MOSES
JUDGE