'1. The Claimant/Applicant filed a claim against the Respondent vide an Originating Summons dated 7th July 2021 seeking to have what she termed as her beneficial interest in the matrimonial property determined. Her claim was settled through a consent dated 14th September 2021. The said consent provided that her interest in the matrimonial property was 49% while the Respondent had a 51% share thereof. The consent was adopted as the order of the Court.
2. The Claimant/Applicant avers that there has been an attempt to procure her exit from the suit property. She averred in her deposition in support of the Notice of Motion before the Court that although the suit property was in the name of the Interested Party, there was a pending transfer to the Respondent, as the Respondent was a beneficiary of the estate of Mohamed Ahmed Bayusuf.
3. The consent dated 14th September 2021 was signed by the Respondent, Ahmed Mohamed Ahmed Bayusuf, the Claimant/Applicant and her counsel. It was adopted in open Court on 16th September 2021 before his Lordship, Onyiego, J. The same is in respect of a property known as Title No Mombasa/Block XI/72 situated at Nelson Mandela Avenue, Tudor, Mombasa County. I shall hereafter refer to this property as the matrimonial property.
4. Vide the Notice of Motion dated 28th July 2025, the Claimant/Applicant sought certain reliefs against the Respondent and the interested party, Mohamed Ahmed Bayusuf & Sons Ltd, on the ground that she had been evicted from the matrimonial home by the Respondent and the interested party, through its director, Yusuf Mohamed Bayusuf. She alleged that although the property was in the name of the Interested Party, they had been in occupation & control thereof and that they had improved it. She therefore prayed for interim orders.
5. The Interested Party entered an appearance under protest and filed a Notice of Preliminary Objection dated 1st August 2025. The gist of the preliminary objection is that proceedings against the Interested Party were invalid as no application for joinder for the alleged interested party was made and granted, and that the Court lacked jurisdiction to issue orders against a party that had not been added. It was urged that the orders issued should not be extended, as they were issued in respect of a concluded matter against a party not formally added to the proceedings, and that the proceedings were defective because the Court was in recess.
6. The Preliminary Objection was argued on 7th August 2025. Mr. Mogaka, learned counsel for the Interested Party, submitted that his client was a limited liability company and not a party or spouse of the Claimant/Applicant. The Interested Party had not been joined in the proceedings. Mr Mogaka urged that the Court was bound to adjudicate the matter between disputants actually before it. He prayed that I allow the preliminary objection as prayed.
7. The counsel for the Respondent supported the Preliminary Objection. Mr Sitonik urged that an Interested Party, who hadn’t been there before, had mysteriously appeared. He prayed that the alleged Interested Party would have been condemned unheard if he was introduced during the execution, having not been a party. He submitted that I find the interested party was introduced irregularly and that the orders made against it should be discharged.
8. Counsel for the Claimant/Applicant opposed the Preliminary Objection, submitting that the preliminary objection did not meet the threshold of what a preliminary objection is, as it was based on disputed facts. She submitted that the question before the Court was whether the lack of formal joinder was fatal. She stated that under Order 1 Rule 9 of the Civil Procedure Rules, no suit shall be denied for non-joinder or misjoinder of the parties. Ms. Mwashushe submitted that the issue at hand was an exercise of discretion by the Court, and thus fell outside the scope of a preliminary objection.
9. Ms. Mwashushe submitted that the question before the Court was who owns the property in question and whether the consent was validly entered into. These call for evidence. She urged that it would be in the interest of justice to retain the Interested Party as a party in the proceedings.
10. In response, Mr. Mogaka urged that Ms Mwashushe had conceded that no joinder had been made and sought before the filing of the instant application and the issuance by the Court of the subsisting orders. He prayed that orders could not issue against his client.
11. I have considered the application, the Notice of Preliminary Objection, and the submissions of the parties. What orders should the Court issue?
12. I have considered the consent recorded by the parties and adopted by the Court. The consent is in respect of property known as Title No Mombasa/Block XI/72 situated at Nelson Mandela Avenue, Tudor Mombasa. My understanding of the same is that it was presumed by the parties that the Respondent owned it, and the said assumption may not be correct as the Interested Party presumably owns the property.
13. In the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696, Law J.A. stated a preliminary objection to be thus:-
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
14. Sir Charles Newbold P. added the following succinct statement in the same judgment:-
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
15. The Claimant/Applicant would appear to me as being interested in enforcing a consent entered into by the parties. She, however, did not apply to join the Interested party, who, it would appear to me, is the registered owner of the suit premises. Was that failure fatal? In my view, joinder of parties is an exercise of discretion by the Court.
16. The interested party in this case has an identifiable stake. Legal interest or duly in these proceedings, but is not presently a party. The dispute at hand concerns a property in which it claims a direct stake and which may have been incorrectly indicated as belonging to the Respondent. In any case, at this point, the ownership status of the said property is something that will necessitate the presentation of evidence, as it is unclear and not uncontested.
17. Although no normal application was made and or granted, the greater interest of justice calls for this matter to be heard on the merits in the presence of, and adduction of evidence by all those with a stake in the property in issue.
18. As already stated, the facts in issue in this matter are in dispute. The Court cannot determine who owns the suit premises at the moment. It would be necessary to have the Interested Party added to the proceedings so that the matters in dispute can be appropriately adjudicated.
19. In the circumstances, I find and hold that the preliminary objection was not properly raised. There are disputed facts. The issue is also one where the court is called upon to exercise its discretionary powers. As the Interested Party had hitherto not been added as a party, I hereby exercise my discretion and add Mohamed Ahmed Bayusuf & Sons Ltd as an Interested Party in these proceedings, in the interest of justice, so that the real issues in dispute herein can be determined.
20. Given the nature of the matter, I make no orders as to costs.
21. In the interest of justice, I shall hear the matter on priority basis.
22. It is so ordered.
Dated and signed at Mombasa, this 20th day of August 2025. Delivered virtually through Microsoft TEAMS.
'
2. The Claimant/Applicant avers that there has been an attempt to procure her exit from the suit property. She averred in her deposition in support of the Notice of Motion before the Court that although the suit property was in the name of the Interested Party, there was a pending transfer to the Respondent, as the Respondent was a beneficiary of the estate of Mohamed Ahmed Bayusuf.
3. The consent dated 14th September 2021 was signed by the Respondent, Ahmed Mohamed Ahmed Bayusuf, the Claimant/Applicant and her counsel. It was adopted in open Court on 16th September 2021 before his Lordship, Onyiego, J. The same is in respect of a property known as Title No Mombasa/Block XI/72 situated at Nelson Mandela Avenue, Tudor, Mombasa County. I shall hereafter refer to this property as the matrimonial property.
4. Vide the Notice of Motion dated 28th July 2025, the Claimant/Applicant sought certain reliefs against the Respondent and the interested party, Mohamed Ahmed Bayusuf & Sons Ltd, on the ground that she had been evicted from the matrimonial home by the Respondent and the interested party, through its director, Yusuf Mohamed Bayusuf. She alleged that although the property was in the name of the Interested Party, they had been in occupation & control thereof and that they had improved it. She therefore prayed for interim orders.
5. The Interested Party entered an appearance under protest and filed a Notice of Preliminary Objection dated 1st August 2025. The gist of the preliminary objection is that proceedings against the Interested Party were invalid as no application for joinder for the alleged interested party was made and granted, and that the Court lacked jurisdiction to issue orders against a party that had not been added. It was urged that the orders issued should not be extended, as they were issued in respect of a concluded matter against a party not formally added to the proceedings, and that the proceedings were defective because the Court was in recess.
6. The Preliminary Objection was argued on 7th August 2025. Mr. Mogaka, learned counsel for the Interested Party, submitted that his client was a limited liability company and not a party or spouse of the Claimant/Applicant. The Interested Party had not been joined in the proceedings. Mr Mogaka urged that the Court was bound to adjudicate the matter between disputants actually before it. He prayed that I allow the preliminary objection as prayed.
7. The counsel for the Respondent supported the Preliminary Objection. Mr Sitonik urged that an Interested Party, who hadn’t been there before, had mysteriously appeared. He prayed that the alleged Interested Party would have been condemned unheard if he was introduced during the execution, having not been a party. He submitted that I find the interested party was introduced irregularly and that the orders made against it should be discharged.
8. Counsel for the Claimant/Applicant opposed the Preliminary Objection, submitting that the preliminary objection did not meet the threshold of what a preliminary objection is, as it was based on disputed facts. She submitted that the question before the Court was whether the lack of formal joinder was fatal. She stated that under Order 1 Rule 9 of the Civil Procedure Rules, no suit shall be denied for non-joinder or misjoinder of the parties. Ms. Mwashushe submitted that the issue at hand was an exercise of discretion by the Court, and thus fell outside the scope of a preliminary objection.
9. Ms. Mwashushe submitted that the question before the Court was who owns the property in question and whether the consent was validly entered into. These call for evidence. She urged that it would be in the interest of justice to retain the Interested Party as a party in the proceedings.
10. In response, Mr. Mogaka urged that Ms Mwashushe had conceded that no joinder had been made and sought before the filing of the instant application and the issuance by the Court of the subsisting orders. He prayed that orders could not issue against his client.
11. I have considered the application, the Notice of Preliminary Objection, and the submissions of the parties. What orders should the Court issue?
12. I have considered the consent recorded by the parties and adopted by the Court. The consent is in respect of property known as Title No Mombasa/Block XI/72 situated at Nelson Mandela Avenue, Tudor Mombasa. My understanding of the same is that it was presumed by the parties that the Respondent owned it, and the said assumption may not be correct as the Interested Party presumably owns the property.
13. In the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696, Law J.A. stated a preliminary objection to be thus:-
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
14. Sir Charles Newbold P. added the following succinct statement in the same judgment:-
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
15. The Claimant/Applicant would appear to me as being interested in enforcing a consent entered into by the parties. She, however, did not apply to join the Interested party, who, it would appear to me, is the registered owner of the suit premises. Was that failure fatal? In my view, joinder of parties is an exercise of discretion by the Court.
16. The interested party in this case has an identifiable stake. Legal interest or duly in these proceedings, but is not presently a party. The dispute at hand concerns a property in which it claims a direct stake and which may have been incorrectly indicated as belonging to the Respondent. In any case, at this point, the ownership status of the said property is something that will necessitate the presentation of evidence, as it is unclear and not uncontested.
17. Although no normal application was made and or granted, the greater interest of justice calls for this matter to be heard on the merits in the presence of, and adduction of evidence by all those with a stake in the property in issue.
18. As already stated, the facts in issue in this matter are in dispute. The Court cannot determine who owns the suit premises at the moment. It would be necessary to have the Interested Party added to the proceedings so that the matters in dispute can be appropriately adjudicated.
19. In the circumstances, I find and hold that the preliminary objection was not properly raised. There are disputed facts. The issue is also one where the court is called upon to exercise its discretionary powers. As the Interested Party had hitherto not been added as a party, I hereby exercise my discretion and add Mohamed Ahmed Bayusuf & Sons Ltd as an Interested Party in these proceedings, in the interest of justice, so that the real issues in dispute herein can be determined.
20. Given the nature of the matter, I make no orders as to costs.
21. In the interest of justice, I shall hear the matter on priority basis.
22. It is so ordered.
Dated and signed at Mombasa, this 20th day of August 2025. Delivered virtually through Microsoft TEAMS.
'