BRIEF FACTS
This is a ruling in respect the application dated 15th March, 2024 filed by the Applicants which sought the following orders: -
a) Spent.
b) THAT the Honourable court be pleased to grant leave to the proposed interested parties to be joined in the proceedings as an interested party and once leave is granted, to file pleadings, affidavits and such other necessary documents thereof in defence of their interest in this suit.
c) Spent.
d) THAT costs of and incidental to the application be provided for.
The Application was based on grounds set out and supported by the Affidavit of GIDEON HAMISI ORAMBUI the proposed 1st interested party herein sworn on 15th March, 2024.
It was stated that he is the registered owner of parcel of land known as SHAWA/RONGAI the suit property herein having purchased the same on 26th June, 2013. He stated that he effected transfer and was issued with a title deed on 5th November, 2014.
He stated that sometime in March, 2023 he received a threatening message that he should move out of the suit land. He added that when he bough the parcel of land the seller had a certificate of confirmation showing that the 1st and 2nd Defendants were the administrators of the estate of Peter Igamba (deceased). He added that during the pendency of this suit the Plaintiffs despite being aware of his occupation, never bothered to enjoin or serve him with the court documents.
He further stated that the Plaintiffs having obtained a judgment and extracted a decree are threatening to evict him yet he wasn’t given a chance to be heard. He stated that he became aware of the suit when he was served with a letter and then summoned to the DCI Rongai. He stated that he was a bonafide purchaser for value and took possession after being issued with a title deed.
It was stated that the allegations by the Plaintiffs can best be adjudicated if given an opportunity to defend his interests for the court to decide the case on merit. In conclusion he urged the court that it would be in the interest of justice that the application be allowed.
Response
The 1st Plaintiff/Respondent on behalf of her Co-Plaintiffs filed her replying affidavit sworn on 21st May, 2024 where she averred that the application was an abuse of the court process. She gave a background of the case and averred that she was a stranger to the contents of paragraphs 1 to 6 of the Applicants supporting affidavit. She averred that as advised by her advocates, she had no remedy flowing to the Applicants hence no reason to enjoin them in the proceedings. She also averred that the Defendants without the Plaintiffs knowledge and/or consent petitioned the court in Succession Cause 432 of 2009 and were issued with grant of letters of administration. That vide summons of revocation of grant dated 15th November, 2014 the Plaintiffs moved the court for annulment of the said grant. She added that the court directed that they file the proceedings in a different forum and also issued preservatory orders to some of the deceased’s properties.
She further averred that the Applicants moved the Nakuru CM ELC 68 of 2023 seeking injunctive reliefs but the same was later withdrawn with costs to the Plaintiffs. She added that the Applicants have had knowledge of the matter and are guilty of laches. She averred that vide the sale agreement dated 26th June, 2013, the Applicants are bound by the terms of default clause 9 whose recourse lies with the 1st Defendant and not the Plaintiffs. She also averred that the court is functus officio having delivered its judgment on 27th April, 2022. In conclusion, she urged the court to dismiss the application with costs.
The 1st proposed interested party in response filed a further affidavit sworn on 25th September, 2024. He reiterated the contents of his supporting affidavit to the application and added that their recourse was not on clause 9 of the sale agreement since the vendors did not breach the agreement. He further added that the certificate of confirmation in respect to the deceased’s estate is yet to be revoked and that the mode of distribution still stands hence the transfer was still valid.
Submissions
The proposed interested parties filed their submissions dated 15th October, 2024 where identified three issues for determination. The first was whether the Applicants should be enjoined as interested parties. They submitted that they are bonafide purchasers for value without notice having purchased the suit property from the Defendants without knowledge of any existing prior claims. They further submitted that at the time of purchase, the suit property was solely registered in the deceased’s name with no records showing that it was held in trust.
They relied on Order 1 Rule 10 of the Civil Procedure Rules, The Supreme Court case of Trusted Society of Human Rights Alliance V Mumo Matemo & 5 Others (2014) eKLR and Evans Kidero V DPP & 3 Others [2014] eKLR and submitted that the suit property is theirs and not part of the Plaintiff/Respondent’s father’s estate. They also submitted that the Plaintiffs have not demonstrated how joinder of the Applicants as interested parties would prejudice them.
The second issue was whether Peter Igamba Njoroge (deceased) was holding the property in trust. While submitting in the negative, they submitted that the deceased was the absolute proprietor of the suit property. They further submitted that there was no encumbrance nor any inference of trust in the register.
The final issue was on costs where the Applicants relied on the case of Jasbir Sigh Rhai & 3 Others V Tarlochan Sigh Rhai & 4 Others (2014) eKLR and urged the court to allow the application with costs to the Applicants.
The Plaintiffs and Defendants did not file their submissions.
Analysis and Determination
This court has considered the application, replying affidavit and submissions and is of the view that the main issue for determination is whether the proposed interested parties ought to be joined to this suit
Order 1 rule 10(2) of the Civil Procedure Rules 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.
In the case of Muruatetu & another V Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), the court laid down the guiding principles applicable in determining an application to be joined as an interested party. In its judgment under paragraph 37, it held as follows:
“The following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the court by way of a formal application. Enjoinment is not as of right, but at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements:
i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined, and not something remote.
iii. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
It was the proposed interested party’s case that they were a necessary party to the suit since they are the registered owners of the suit property SHAWA/RONGAI. The Plaintiffs on the other hand opposed the said joinder on the basis that the proposed interested parties had knowledge of the matter. They argued that vide the sale agreement dated 26th June, 2013, the proposed interested parties are bound by the terms of default clause 9 whose recourse was with the 1st Defendant.
This court has keenly perused the court record and it is not in dispute that the proposed interested parties are the registered owners of the suit property. This is evident from the Certificate of Title issued on 5th November, 2014. It is also noteworthy that in as much as the Plaintiffs argue that they have no recourse to pursue against the proposed interested parties it is this court’s view that the claims raised by the Plaintiffs ought to be determined on merit. In addition, it is this court’s view that the claims as raised by both the Plaintiffs and proposed interested parties cannot be fully determined unless both parties are heard.
Further, it is this court’s view that the Plaintiffs do not stand to suffer any prejudice if the proposed interested parties are joined as parties to the case. Therefore, in light of the principles set out in Order 1 Rule 10 of the Civil Procedure Rules as well as the case of Muruatetu (supra), this court is satisfied that the proposed interested parties meet the requirements as set out above.
Consequently, it is this court’s view that the proposed interested parties have an identifiable stake in the suit and therefore a necessary party to enable this court reach a just determination.
In the upshot, this court makes the following orders:
a) The proposed interested parties are joined to this suit as the 3rd and 4th Defendants respectively and granted 14 days to file and serve its pleadings together with witness statements and documents.
b) Upon service, the Plaintiffs and 1st and 2nd Defendants are granted 14 days to file and serve their pleadings, witness statements and documents in response.
c) Each party to bear its own costs.
It is so ordered.
This is a ruling in respect the application dated 15th March, 2024 filed by the Applicants which sought the following orders: -
a) Spent.
b) THAT the Honourable court be pleased to grant leave to the proposed interested parties to be joined in the proceedings as an interested party and once leave is granted, to file pleadings, affidavits and such other necessary documents thereof in defence of their interest in this suit.
c) Spent.
d) THAT costs of and incidental to the application be provided for.
The Application was based on grounds set out and supported by the Affidavit of GIDEON HAMISI ORAMBUI the proposed 1st interested party herein sworn on 15th March, 2024.
It was stated that he is the registered owner of parcel of land known as SHAWA/RONGAI the suit property herein having purchased the same on 26th June, 2013. He stated that he effected transfer and was issued with a title deed on 5th November, 2014.
He stated that sometime in March, 2023 he received a threatening message that he should move out of the suit land. He added that when he bough the parcel of land the seller had a certificate of confirmation showing that the 1st and 2nd Defendants were the administrators of the estate of Peter Igamba (deceased). He added that during the pendency of this suit the Plaintiffs despite being aware of his occupation, never bothered to enjoin or serve him with the court documents.
He further stated that the Plaintiffs having obtained a judgment and extracted a decree are threatening to evict him yet he wasn’t given a chance to be heard. He stated that he became aware of the suit when he was served with a letter and then summoned to the DCI Rongai. He stated that he was a bonafide purchaser for value and took possession after being issued with a title deed.
It was stated that the allegations by the Plaintiffs can best be adjudicated if given an opportunity to defend his interests for the court to decide the case on merit. In conclusion he urged the court that it would be in the interest of justice that the application be allowed.
Response
The 1st Plaintiff/Respondent on behalf of her Co-Plaintiffs filed her replying affidavit sworn on 21st May, 2024 where she averred that the application was an abuse of the court process. She gave a background of the case and averred that she was a stranger to the contents of paragraphs 1 to 6 of the Applicants supporting affidavit. She averred that as advised by her advocates, she had no remedy flowing to the Applicants hence no reason to enjoin them in the proceedings. She also averred that the Defendants without the Plaintiffs knowledge and/or consent petitioned the court in Succession Cause 432 of 2009 and were issued with grant of letters of administration. That vide summons of revocation of grant dated 15th November, 2014 the Plaintiffs moved the court for annulment of the said grant. She added that the court directed that they file the proceedings in a different forum and also issued preservatory orders to some of the deceased’s properties.
She further averred that the Applicants moved the Nakuru CM ELC 68 of 2023 seeking injunctive reliefs but the same was later withdrawn with costs to the Plaintiffs. She added that the Applicants have had knowledge of the matter and are guilty of laches. She averred that vide the sale agreement dated 26th June, 2013, the Applicants are bound by the terms of default clause 9 whose recourse lies with the 1st Defendant and not the Plaintiffs. She also averred that the court is functus officio having delivered its judgment on 27th April, 2022. In conclusion, she urged the court to dismiss the application with costs.
The 1st proposed interested party in response filed a further affidavit sworn on 25th September, 2024. He reiterated the contents of his supporting affidavit to the application and added that their recourse was not on clause 9 of the sale agreement since the vendors did not breach the agreement. He further added that the certificate of confirmation in respect to the deceased’s estate is yet to be revoked and that the mode of distribution still stands hence the transfer was still valid.
Submissions
The proposed interested parties filed their submissions dated 15th October, 2024 where identified three issues for determination. The first was whether the Applicants should be enjoined as interested parties. They submitted that they are bonafide purchasers for value without notice having purchased the suit property from the Defendants without knowledge of any existing prior claims. They further submitted that at the time of purchase, the suit property was solely registered in the deceased’s name with no records showing that it was held in trust.
They relied on Order 1 Rule 10 of the Civil Procedure Rules, The Supreme Court case of Trusted Society of Human Rights Alliance V Mumo Matemo & 5 Others (2014) eKLR and Evans Kidero V DPP & 3 Others [2014] eKLR and submitted that the suit property is theirs and not part of the Plaintiff/Respondent’s father’s estate. They also submitted that the Plaintiffs have not demonstrated how joinder of the Applicants as interested parties would prejudice them.
The second issue was whether Peter Igamba Njoroge (deceased) was holding the property in trust. While submitting in the negative, they submitted that the deceased was the absolute proprietor of the suit property. They further submitted that there was no encumbrance nor any inference of trust in the register.
The final issue was on costs where the Applicants relied on the case of Jasbir Sigh Rhai & 3 Others V Tarlochan Sigh Rhai & 4 Others (2014) eKLR and urged the court to allow the application with costs to the Applicants.
The Plaintiffs and Defendants did not file their submissions.
Analysis and Determination
This court has considered the application, replying affidavit and submissions and is of the view that the main issue for determination is whether the proposed interested parties ought to be joined to this suit
Order 1 rule 10(2) of the Civil Procedure Rules 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.
In the case of Muruatetu & another V Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), the court laid down the guiding principles applicable in determining an application to be joined as an interested party. In its judgment under paragraph 37, it held as follows:
“The following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the court by way of a formal application. Enjoinment is not as of right, but at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements:
i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined, and not something remote.
iii. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
It was the proposed interested party’s case that they were a necessary party to the suit since they are the registered owners of the suit property SHAWA/RONGAI. The Plaintiffs on the other hand opposed the said joinder on the basis that the proposed interested parties had knowledge of the matter. They argued that vide the sale agreement dated 26th June, 2013, the proposed interested parties are bound by the terms of default clause 9 whose recourse was with the 1st Defendant.
This court has keenly perused the court record and it is not in dispute that the proposed interested parties are the registered owners of the suit property. This is evident from the Certificate of Title issued on 5th November, 2014. It is also noteworthy that in as much as the Plaintiffs argue that they have no recourse to pursue against the proposed interested parties it is this court’s view that the claims raised by the Plaintiffs ought to be determined on merit. In addition, it is this court’s view that the claims as raised by both the Plaintiffs and proposed interested parties cannot be fully determined unless both parties are heard.
Further, it is this court’s view that the Plaintiffs do not stand to suffer any prejudice if the proposed interested parties are joined as parties to the case. Therefore, in light of the principles set out in Order 1 Rule 10 of the Civil Procedure Rules as well as the case of Muruatetu (supra), this court is satisfied that the proposed interested parties meet the requirements as set out above.
Consequently, it is this court’s view that the proposed interested parties have an identifiable stake in the suit and therefore a necessary party to enable this court reach a just determination.
In the upshot, this court makes the following orders:
a) The proposed interested parties are joined to this suit as the 3rd and 4th Defendants respectively and granted 14 days to file and serve its pleadings together with witness statements and documents.
b) Upon service, the Plaintiffs and 1st and 2nd Defendants are granted 14 days to file and serve their pleadings, witness statements and documents in response.
c) Each party to bear its own costs.
It is so ordered.