REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
FAMILY DIVISION
MATRIMONIAL CAUSE NO. E030 OF 2024 (OS)
JOH KIHANYA NJIHIA ................... APPLICANT
VERSUS
JOYCE NJERI KAHORO .................... RESPONDENT
AND
PETER KIMEMIA ..................... INTENDED INTERESTED PARTY/APPLICANT
RULING
John Kihanya Njihia filed Originating Summons dated 10 June 2024 seeking, inter alia , a declaration that the matrimonial properties known as LR NO. 7645/43, KIAMBAA/RUAKA/6329; KIAMBAA/RUAKA/5310 together with the developments thereon and motor vehicle registration number KDP 707B Toyota Prado acquired and developed through the joint efforts of the Respondent and himself and registered and/or held by the Respondent in the name on her behalf and in trust for him.
By Notice of Motion dated 9 July 2024, the Intended Interested Party/Applicant seeks the following orders:
Spent;
Spent;
Spent;
That this Honourable Court be pleased to join the intended interested party as an Interested Party in the instant application and suit;
That upon joinder, the Interested Party be granted leave to file pleadings appertaining to the Application and the Originating Summons filed in this matter;
That the costs of the Application be in the cause.
The Application is supported y an Affidavit sworn by the Intended Interested Party, a brother to the Respondent. It is his contention that he and the Respondent have been engaged in various investments for their mutual benefit. The Intended Interested Party claims co-ownership and beneficial interest in land parcels KIAMBAA/RUAKA/6329 and KIAMBAA/RUAKA/5310, motor vehicle registration Number KDP 707B Toyota Prado and the business premises located at Muthithu building. He asserts that his presence in this suit is necessary in order to protect his proprietary rights, which he contends are distinct from any matrimonial property claims between the Applicant and the Respondent.
The Intended Interested Party avers that the Muthithu building premises was acquired by him in 2014. Motor vehicle KDP 707B was purchased by him while abroad and is registered in his name. Attached to the Supporting Affidavit is a log book for the said motor vehicle. He avers that the land parcels KIAMBAA/RUAKA/6329 and KIAMBAA/RUAKA/5310 were jointly acquired and developed with the Respondent through independent saving and joint accounts.
The Intended Interested Party further seeks to have any injunctive orders affecting these properties set aside or vacated, arguing that they interfere with his ability to deal with his assets.
In response, the Applicant filed a Replying Affidavit opposing the joinder, arguing that the Application is brought in bad faith, is misconceived and an abuse of the court process. The Applicant avers that the Intended Interested Party does not own any of the properties as alleged, and that the same are owned by the Respondent. The Applicant avers that although the Intended Interested Party is not a stranger to the Respondent’s business, he has never been an owner of the same. His involvement was limited to assisting in the purchase of stock from China, but not co-ownership. The Applicant asserts that any dealings between the Intended Interested Party and the Respondent are purely contractual and separate from the matrimonial dispute, and, therefore, the Intended Interested Party does not have a direct identifiable stake to warrant joinder.
The Application was canvassed by way of written submissions. The Respondent opted not to participate in this Application.
Analysis and Determination
I have keenly read the Application, Affidavits and submissions filed herein. The issue for determination is whether the Intended Interested Party has an identifiable stake herein to warrant his joinder as an interested party.
An application for joinder is premised on Order 1 rule 10(2) of the Civil Procedure Rules, which provides as follows:
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 overarching principle guiding the joinder of parties is the need for the Court to effectively and conclusively adjudicate upon and settle all questions involved in a suit.
Who is an interested party and at what stage can joinder of an interested party be entertained? According to the Black’s Law Dictionary, 9 th Edition a “Necessary Party” is defined as;
“A party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings”
The Black Law Dictionary, 9 th Edition at page 1232 further defines an interested party as; " A party who has a recognizable stake (and therefore standing) in the matter". Whereas the Civil Procedure Act is silent on the subject as to who is an “interested party", Order 41 Rule 5 of the Civil Procedure Rules 2010, does make a reference to the term “interested party” and states as follows;
“The court may either on its own motion or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit"
In the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR the Supreme Court of Kenya held that;
“[22] 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…”
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 questions 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.”
Applying these principles to the present case, the Intended Interested Party, has laid a claim to various properties that are the subject of the matrimonial dispute. He has provided specific details regarding the acquisition and development of these properties, asserting his financial contributions and legal ownership. While the Applicant argues that the Intended Interested Party’s claim is contractual and separate from the matrimonial cause, this Court observes that the properties claimed by the Intended Interested Party are the very subject matter of the matrimonial property dispute between the Applicant and Respondent. If these properties are, indeed, partly or wholly owned by the Intended Interested Party, then any decision by this Court regarding their distribution as matrimonial property would directly and significantly affect his rights. The existence of a contractual relationship between the Intended Interested Party and the Respondent does not necessarily preclude his interest in the current suit, especially where the property forms part of the main dispute.
The presence of the Intended Interested Party, therefore, would enable this Court to effectively and conclusively adjudicate upon the true ownership and interests in the properties in question. Without his inclusion, there is a risk that orders made in the matrimonial cause could prejudice his rights or lead to further litigation to resolve the conflicting claims over the properties.
In the premise, the application herein is merited. I make the following orders:
The Intended Interested Party is hereby enjoined as an Interested Party in this cause;
That the Interested Party shall file and serve his Replying Affidavit to the Originating Summons dated 10 June 2024 within 21 days of the date hereof;
That the costs of the Application shall be in the cause
DATED AND DELIVERED AT NAIROBI THIS 7 DAY OF AUGUST 2025
HELENE R. NAMISI
JUDGE OF THE HIGH COURT
Delivered on virtual platform in the presence of:
Applicant: Ms. Muthoni h/b Mrs. Maina
Respondent: Ms. Nyongesa
Intended Interested Party: Mr. Kimaiti
Court Assistant: Lucy Mwangi
IN THE HIGH COURT OF KENYA AT MILIMANI
FAMILY DIVISION
MATRIMONIAL CAUSE NO. E030 OF 2024 (OS)
JOH KIHANYA NJIHIA ................... APPLICANT
VERSUS
JOYCE NJERI KAHORO .................... RESPONDENT
AND
PETER KIMEMIA ..................... INTENDED INTERESTED PARTY/APPLICANT
RULING
John Kihanya Njihia filed Originating Summons dated 10 June 2024 seeking, inter alia , a declaration that the matrimonial properties known as LR NO. 7645/43, KIAMBAA/RUAKA/6329; KIAMBAA/RUAKA/5310 together with the developments thereon and motor vehicle registration number KDP 707B Toyota Prado acquired and developed through the joint efforts of the Respondent and himself and registered and/or held by the Respondent in the name on her behalf and in trust for him.
By Notice of Motion dated 9 July 2024, the Intended Interested Party/Applicant seeks the following orders:
Spent;
Spent;
Spent;
That this Honourable Court be pleased to join the intended interested party as an Interested Party in the instant application and suit;
That upon joinder, the Interested Party be granted leave to file pleadings appertaining to the Application and the Originating Summons filed in this matter;
That the costs of the Application be in the cause.
The Application is supported y an Affidavit sworn by the Intended Interested Party, a brother to the Respondent. It is his contention that he and the Respondent have been engaged in various investments for their mutual benefit. The Intended Interested Party claims co-ownership and beneficial interest in land parcels KIAMBAA/RUAKA/6329 and KIAMBAA/RUAKA/5310, motor vehicle registration Number KDP 707B Toyota Prado and the business premises located at Muthithu building. He asserts that his presence in this suit is necessary in order to protect his proprietary rights, which he contends are distinct from any matrimonial property claims between the Applicant and the Respondent.
The Intended Interested Party avers that the Muthithu building premises was acquired by him in 2014. Motor vehicle KDP 707B was purchased by him while abroad and is registered in his name. Attached to the Supporting Affidavit is a log book for the said motor vehicle. He avers that the land parcels KIAMBAA/RUAKA/6329 and KIAMBAA/RUAKA/5310 were jointly acquired and developed with the Respondent through independent saving and joint accounts.
The Intended Interested Party further seeks to have any injunctive orders affecting these properties set aside or vacated, arguing that they interfere with his ability to deal with his assets.
In response, the Applicant filed a Replying Affidavit opposing the joinder, arguing that the Application is brought in bad faith, is misconceived and an abuse of the court process. The Applicant avers that the Intended Interested Party does not own any of the properties as alleged, and that the same are owned by the Respondent. The Applicant avers that although the Intended Interested Party is not a stranger to the Respondent’s business, he has never been an owner of the same. His involvement was limited to assisting in the purchase of stock from China, but not co-ownership. The Applicant asserts that any dealings between the Intended Interested Party and the Respondent are purely contractual and separate from the matrimonial dispute, and, therefore, the Intended Interested Party does not have a direct identifiable stake to warrant joinder.
The Application was canvassed by way of written submissions. The Respondent opted not to participate in this Application.
Analysis and Determination
I have keenly read the Application, Affidavits and submissions filed herein. The issue for determination is whether the Intended Interested Party has an identifiable stake herein to warrant his joinder as an interested party.
An application for joinder is premised on Order 1 rule 10(2) of the Civil Procedure Rules, which provides as follows:
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 overarching principle guiding the joinder of parties is the need for the Court to effectively and conclusively adjudicate upon and settle all questions involved in a suit.
Who is an interested party and at what stage can joinder of an interested party be entertained? According to the Black’s Law Dictionary, 9 th Edition a “Necessary Party” is defined as;
“A party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings”
The Black Law Dictionary, 9 th Edition at page 1232 further defines an interested party as; " A party who has a recognizable stake (and therefore standing) in the matter". Whereas the Civil Procedure Act is silent on the subject as to who is an “interested party", Order 41 Rule 5 of the Civil Procedure Rules 2010, does make a reference to the term “interested party” and states as follows;
“The court may either on its own motion or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit"
In the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR the Supreme Court of Kenya held that;
“[22] 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…”
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 questions 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.”
Applying these principles to the present case, the Intended Interested Party, has laid a claim to various properties that are the subject of the matrimonial dispute. He has provided specific details regarding the acquisition and development of these properties, asserting his financial contributions and legal ownership. While the Applicant argues that the Intended Interested Party’s claim is contractual and separate from the matrimonial cause, this Court observes that the properties claimed by the Intended Interested Party are the very subject matter of the matrimonial property dispute between the Applicant and Respondent. If these properties are, indeed, partly or wholly owned by the Intended Interested Party, then any decision by this Court regarding their distribution as matrimonial property would directly and significantly affect his rights. The existence of a contractual relationship between the Intended Interested Party and the Respondent does not necessarily preclude his interest in the current suit, especially where the property forms part of the main dispute.
The presence of the Intended Interested Party, therefore, would enable this Court to effectively and conclusively adjudicate upon the true ownership and interests in the properties in question. Without his inclusion, there is a risk that orders made in the matrimonial cause could prejudice his rights or lead to further litigation to resolve the conflicting claims over the properties.
In the premise, the application herein is merited. I make the following orders:
The Intended Interested Party is hereby enjoined as an Interested Party in this cause;
That the Interested Party shall file and serve his Replying Affidavit to the Originating Summons dated 10 June 2024 within 21 days of the date hereof;
That the costs of the Application shall be in the cause
DATED AND DELIVERED AT NAIROBI THIS 7 DAY OF AUGUST 2025
HELENE R. NAMISI
JUDGE OF THE HIGH COURT
Delivered on virtual platform in the presence of:
Applicant: Ms. Muthoni h/b Mrs. Maina
Respondent: Ms. Nyongesa
Intended Interested Party: Mr. Kimaiti
Court Assistant: Lucy Mwangi