1. By way of a Notice of Motion dated 25th October 2024, the Applicant, Brenda Masitsa Mulindi, seeks to be joined in these proceedings as an interested party. The application is premised on the ground that her participation will assist the court in arriving at a fair and just determination. It is supported by an affidavit sworn on the same date by the intended interested party, in which she deposes that she is the widow of the late Gerald Musau Kilili. She states that the 1st and 2nd Respondents have excluded her as a beneficiary of the deceased’s estate, despite the fact that her marriage to the deceased was blessed with one child, Andrew Kilili.
2. The Plaintiff opposed the application through a Replying Affidavit sworn by Jackline Mwende on 11th February 2025. She deposes that the application is an abuse of the court process and does not meet the threshold for joinder as an interested party. According to her, the Applicant has failed to demonstrate any justifiable grounds for admission. She further asserts that any claims relating to inheritance should be addressed separately in Kangundo Succession Cause No. E70 of 2022, In the Matter of the Estate of Gerald Musau Kilili (Deceased), where she is one of the petitioners.
3. The Plaintiff also contends that the Applicant has not established any identifiable stake or legal interest in the present proceedings to show that she would be aggrieved or prejudiced by the outcome if the matter proceeds in her absence. She maintains that the application is merely a tactic intended to delay and frustrate the hearing and final determination of this matter.
4. Notably despite service the defendants did not respond to the application. The application was canvassed by way of submissions.
Intended Interested party submissions
5. The intended interested party identified a single issue for determination whether she should be joined as a party to this suit. In support of her application, she relied on the Court of Appeal decision in Pravin Bowry v. John Ward & Another (2015) eKLR and the High Court decision in Kingori v. Chege & 3 Others (2002) 2 KLR 243, which outline the principles governing the joinder of parties to a suit. She submitted that her application is grounded on the fact that she has a beneficial interest in the estate of the late Gerald Musau Kilili by virtue of being his wife. She further argued that under succession law, proof of dependency is a relevant factor, and she had established such dependency through her marriage to the deceased and the fact that they had one child together. She faulted the Plaintiff for failing to include her as a respondent in the suit, despite her status as a wife and beneficiary of the deceased’s estate.
6. The intended interested party further submitted that no prejudice would be occasioned to the existing parties if she were joined to the proceedings. On the contrary, her inclusion would help prevent a multiplicity of suits and would assist the court in achieving a just and comprehensive resolution of the matter. She therefore prayed that the application be allowed.
Plaintiff Submission
7. The Plaintiff identified the key issue for determination as whether the Applicant has met the threshold for being enjoined as an interested party in these proceedings. In support of her position, the Plaintiff cited Order 1 Rule 10(2) of the Civil Procedure Rules and the Supreme Court decision in Communications Commission of Kenya & 4 Others v. Royal Media Services Limited & 7 Others (2014) eKLR, emphasizing that joinder is not a right but a discretionary remedy. Therefore, an applicant must lay sufficient grounds before the court to justify such joinder.
8. The Plaintiff also relied on the case of Francis K. Muruatetu & Another v. Republic & 5 Others (2016) eKLR, which outlines the key elements to be considered in an application for joinder as an interested party. Further reference was made to Skov Estate Limited & 5 Others v. Agricultural Development Corporation & Another (2015) eKLR, which sets out the legal threshold for such applications.
9. It was the Plaintiff’s submission that the present suit does not concern the distribution of the estate of the late Gerald Musau Kilili. As such, any claims relating to inheritance should be addressed separately through succession proceedings. The Plaintiff argued that the Applicant has failed to demonstrate any identifiable stake, legal interest, or duty in the current proceedings, and has not satisfied the conditions established in the cited authorities. On this basis, the Plaintiff urged the court to dismiss the application with costs.
Analysis and determination
10. From the above the issue arising for determination is whether the applicant can be granted leave to be joined as an interested party in these proceedings.
11. In the case of Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (Civ) (28 January 2016) (Ruling) the Supreme court held;
33. These legal provisions have been considered by the Court in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014]eKLR (an application) by the Law Society of Kenya).In this case, the Law Society of Kenya(LSK) sought to been joined in the proceedings as an interested party, but leave was denied. The Court observed that [paragraphs 13-15]:
(13) While the Rules have a definition of who an amicus is, there is no definition attributed to ‘Intervener’ or ‘Interested Party’. However, from Rule 25 above, one is allowed to apply to be enjoined any time in the course of the proceedings.
[14] Black’s Law Dictionary, 9 th Edition, defines “intervener” (at page 897) thus: “One who voluntarily enters a pending lawsuit because of a personal stake in it” and defines ‘Interested Party’ (at p.1232) thus: A party who has a recognizable stake (and therefore standing) in a matter”.
[15] On the other hand, an amicus is defined in Black’s Law Dictionary thus: ‘A person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter’.”
34. With that definition of “interested party,” the Court proceeded to hold further [paragraphs 17-18]:
(17) Sufice it to say that while an interested party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the Court having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom. “[18] Consequently, 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…”
35. This Supreme Court decision was cited by the High Court in Judicial Service Commission v Speaker of The National Assembly & 8 Others, [2014]eKLR. The High Court also cited the definition of ‘interested party’ in: The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereafter the “Mutunga Rules” thus: 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.”
12. Guided by the applicable legal principles, this court must determine whether the Applicant has demonstrated a sufficient and identifiable interest to warrant her admission as an interested party in these proceedings.
13. The Applicant asserts that she has a beneficial interest in the estate of the late Gerald Musau Kilili (deceased), arising from her status as his wife and as a beneficiary of his estate. She further states that her participation in these proceedings is necessary to assist the court in arriving at the truth as well as a just and fair determination of the issues at hand. The application has been opposed on the basis that the Applicant has no identifiable legal interest in the current suit. The Respondent argues that the present proceedings do not concern the distribution of the estate of the deceased and that any claims relating to inheritance should be addressed separately through appropriate succession proceedings.
14. Upon reviewing the originating summons filed by the Plaintiff/Respondent, the court notes that the reliefs sought include:
a. A declaration that the Plaintiff was the legal wife of the deceased, Gerald Musau Kilili;
b. A declaration that she ranks in priority to petition for letters of administration in the deceased’s estate;
c. An order compelling the Defendant to surrender all sale proceeds, rental income, and documents relating to matrimonial property acquired jointly by the Plaintiff and the deceased;
d. An injunction restraining the Defendants from evicting or denying the Plaintiff and her children access to the matrimonial property.
15. From the above, it is evident that the core of the dispute revolves around the question of whether the Plaintiff was married to the deceased and the identification and protection of matrimonial property allegedly acquired during the marriage. The Applicant now seeking to be joined also claims to be a wife of the deceased and asserts a beneficial interest in the same estate. She further states that she has a child with the deceased.
16. Without delving into the merits of the competing claims, this court is satisfied that the Applicant has demonstrated an identifiable interest in the subject matter of the suit. Both the Plaintiff and the Applicant claim to be wives of the deceased and both assert rights over the estate and matrimonial property. These overlapping claims raise substantive issues that are central to the resolution of the dispute.
17. In view of this, the court finds it just, fair, and procedurally appropriate to allow the Applicant to be joined as an interested party in these proceedings. Her participation will ensure that all relevant perspectives are considered and that the court is fully informed before making a determination. Moreover, no prejudice will be occasioned to the existing parties, as each will be afforded an opportunity to present their case and respond to the claims raised.
18. Accordingly, the Applicant is hereby admitted as an interested party in this suit. The costs of this application shall be in the cause.
2. The Plaintiff opposed the application through a Replying Affidavit sworn by Jackline Mwende on 11th February 2025. She deposes that the application is an abuse of the court process and does not meet the threshold for joinder as an interested party. According to her, the Applicant has failed to demonstrate any justifiable grounds for admission. She further asserts that any claims relating to inheritance should be addressed separately in Kangundo Succession Cause No. E70 of 2022, In the Matter of the Estate of Gerald Musau Kilili (Deceased), where she is one of the petitioners.
3. The Plaintiff also contends that the Applicant has not established any identifiable stake or legal interest in the present proceedings to show that she would be aggrieved or prejudiced by the outcome if the matter proceeds in her absence. She maintains that the application is merely a tactic intended to delay and frustrate the hearing and final determination of this matter.
4. Notably despite service the defendants did not respond to the application. The application was canvassed by way of submissions.
Intended Interested party submissions
5. The intended interested party identified a single issue for determination whether she should be joined as a party to this suit. In support of her application, she relied on the Court of Appeal decision in Pravin Bowry v. John Ward & Another (2015) eKLR and the High Court decision in Kingori v. Chege & 3 Others (2002) 2 KLR 243, which outline the principles governing the joinder of parties to a suit. She submitted that her application is grounded on the fact that she has a beneficial interest in the estate of the late Gerald Musau Kilili by virtue of being his wife. She further argued that under succession law, proof of dependency is a relevant factor, and she had established such dependency through her marriage to the deceased and the fact that they had one child together. She faulted the Plaintiff for failing to include her as a respondent in the suit, despite her status as a wife and beneficiary of the deceased’s estate.
6. The intended interested party further submitted that no prejudice would be occasioned to the existing parties if she were joined to the proceedings. On the contrary, her inclusion would help prevent a multiplicity of suits and would assist the court in achieving a just and comprehensive resolution of the matter. She therefore prayed that the application be allowed.
Plaintiff Submission
7. The Plaintiff identified the key issue for determination as whether the Applicant has met the threshold for being enjoined as an interested party in these proceedings. In support of her position, the Plaintiff cited Order 1 Rule 10(2) of the Civil Procedure Rules and the Supreme Court decision in Communications Commission of Kenya & 4 Others v. Royal Media Services Limited & 7 Others (2014) eKLR, emphasizing that joinder is not a right but a discretionary remedy. Therefore, an applicant must lay sufficient grounds before the court to justify such joinder.
8. The Plaintiff also relied on the case of Francis K. Muruatetu & Another v. Republic & 5 Others (2016) eKLR, which outlines the key elements to be considered in an application for joinder as an interested party. Further reference was made to Skov Estate Limited & 5 Others v. Agricultural Development Corporation & Another (2015) eKLR, which sets out the legal threshold for such applications.
9. It was the Plaintiff’s submission that the present suit does not concern the distribution of the estate of the late Gerald Musau Kilili. As such, any claims relating to inheritance should be addressed separately through succession proceedings. The Plaintiff argued that the Applicant has failed to demonstrate any identifiable stake, legal interest, or duty in the current proceedings, and has not satisfied the conditions established in the cited authorities. On this basis, the Plaintiff urged the court to dismiss the application with costs.
Analysis and determination
10. From the above the issue arising for determination is whether the applicant can be granted leave to be joined as an interested party in these proceedings.
11. In the case of Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (Civ) (28 January 2016) (Ruling) the Supreme court held;
33. These legal provisions have been considered by the Court in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014]eKLR (an application) by the Law Society of Kenya).In this case, the Law Society of Kenya(LSK) sought to been joined in the proceedings as an interested party, but leave was denied. The Court observed that [paragraphs 13-15]:
(13) While the Rules have a definition of who an amicus is, there is no definition attributed to ‘Intervener’ or ‘Interested Party’. However, from Rule 25 above, one is allowed to apply to be enjoined any time in the course of the proceedings.
[14] Black’s Law Dictionary, 9 th Edition, defines “intervener” (at page 897) thus: “One who voluntarily enters a pending lawsuit because of a personal stake in it” and defines ‘Interested Party’ (at p.1232) thus: A party who has a recognizable stake (and therefore standing) in a matter”.
[15] On the other hand, an amicus is defined in Black’s Law Dictionary thus: ‘A person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter’.”
34. With that definition of “interested party,” the Court proceeded to hold further [paragraphs 17-18]:
(17) Sufice it to say that while an interested party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the Court having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom. “[18] Consequently, 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…”
35. This Supreme Court decision was cited by the High Court in Judicial Service Commission v Speaker of The National Assembly & 8 Others, [2014]eKLR. The High Court also cited the definition of ‘interested party’ in: The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereafter the “Mutunga Rules” thus: 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.”
12. Guided by the applicable legal principles, this court must determine whether the Applicant has demonstrated a sufficient and identifiable interest to warrant her admission as an interested party in these proceedings.
13. The Applicant asserts that she has a beneficial interest in the estate of the late Gerald Musau Kilili (deceased), arising from her status as his wife and as a beneficiary of his estate. She further states that her participation in these proceedings is necessary to assist the court in arriving at the truth as well as a just and fair determination of the issues at hand. The application has been opposed on the basis that the Applicant has no identifiable legal interest in the current suit. The Respondent argues that the present proceedings do not concern the distribution of the estate of the deceased and that any claims relating to inheritance should be addressed separately through appropriate succession proceedings.
14. Upon reviewing the originating summons filed by the Plaintiff/Respondent, the court notes that the reliefs sought include:
a. A declaration that the Plaintiff was the legal wife of the deceased, Gerald Musau Kilili;
b. A declaration that she ranks in priority to petition for letters of administration in the deceased’s estate;
c. An order compelling the Defendant to surrender all sale proceeds, rental income, and documents relating to matrimonial property acquired jointly by the Plaintiff and the deceased;
d. An injunction restraining the Defendants from evicting or denying the Plaintiff and her children access to the matrimonial property.
15. From the above, it is evident that the core of the dispute revolves around the question of whether the Plaintiff was married to the deceased and the identification and protection of matrimonial property allegedly acquired during the marriage. The Applicant now seeking to be joined also claims to be a wife of the deceased and asserts a beneficial interest in the same estate. She further states that she has a child with the deceased.
16. Without delving into the merits of the competing claims, this court is satisfied that the Applicant has demonstrated an identifiable interest in the subject matter of the suit. Both the Plaintiff and the Applicant claim to be wives of the deceased and both assert rights over the estate and matrimonial property. These overlapping claims raise substantive issues that are central to the resolution of the dispute.
17. In view of this, the court finds it just, fair, and procedurally appropriate to allow the Applicant to be joined as an interested party in these proceedings. Her participation will ensure that all relevant perspectives are considered and that the court is fully informed before making a determination. Moreover, no prejudice will be occasioned to the existing parties, as each will be afforded an opportunity to present their case and respond to the claims raised.
18. Accordingly, the Applicant is hereby admitted as an interested party in this suit. The costs of this application shall be in the cause.