Introduction and Background
1. The Court is called upon to determine the application dated 21st February 2025 brought by Mr. Kepher Otichilo Susu, who seeks to be joined in these proceedings as a co-plaintiff. The application is expressed to be brought under Order 1 Rule 10 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The applicant grounds his application on the fact that he is a shareholder and director of the 1st plaintiff company, Park Towers Limited, and asserts that he has a direct and personal interest in the outcome of these proceedings.
2. He contends that he was previously granted leave on 9th March 2022 to act in person, but due to financial constraints, he was not able to retain counsel. He further asserts that his joinder as a party-plaintiff is necessary for the effectual and complete adjudication of the questions in controversy in this suit.
3. The application is opposed by the 1st and 2nd plaintiffs. Mr. Hudson Omemu, a director of the 1st plaintiff, confirms the applicant’s status as a founding shareholder and director but asserts that the applicant’s interests are fully represented by the current counsel on record, M/s Mbiriri Ngugi & Co. Advocates, whose appointment was confirmed by this Court in a prior ruling.
4. The 2nd plaintiff, Mr. Sammy D. Muathe, similarly opposes the application, contending that he holds valid authority under a Special Power of Attorney dated 13th October 2020 and a prior consent order made in Civil Suit No. 871 of 1997, to represent the company’s interests in this matter. He confirms that his joinder as the 2nd plaintiff herein was as a result of the consolidation of this matter with JR E058/2021 in which he was the ex parte applicant.
5. The 1st defendant also filed a replying affidavit sworn on 12th May 2025, in which she expresses her intention to seek the cross-examination of Mr. Kepher Otichilo Susu on the contents of the Board Resolution relied upon in his application, as well as other documents forming part of the trial bundle. It is her position that the applicant is a relevant party to these proceedings, and that at the appropriate stage of the trial, the defence intends to subject him to cross-examination on the said documents and the broader matters in contention.
Analysis and Determination
6. I have carefully considered the application, responses thereto and the written submissions filed by the respective parties. The central question for determination is whether the applicant has met the threshold for joinder as a co-plaintiff under Order 1 Rule 10(2) of the Civil Procedure Rules which provides that:
“The court may at any stage of the proceedings, either upon or without the application of either party... order that the name of any person who ought to have been joined, 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.”
7. The principles governing joinder of parties have been the subject of authoritative pronouncement by the Supreme Court in amongst others, Muruatetu & Another V Republic; Kenya National Commission on Human Rights & 2 Others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR). The Court stated:
“Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements: 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. 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. 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.”
8. For this application to succeed, the applicant must establish that he has a direct and identifiable legal interest in the subject matter of the suit, which is distinct from that of the existing parties. It must be more than a general interest or mere association with the 1st plaintiff company. Crucially, he must demonstrate that without his presence, the Court will be unable to effectually and completely adjudicate upon all the issues in controversy. It must also be shown that his interest cannot be adequately represented by the existing plaintiffs. Absent such proof, joinder would serve no useful purpose and may instead compromise the coherent and orderly prosecution of the suit.
9. The principle of separate legal personality remains central to the determination of the present application. The suit before this Court was instituted by the company in its own name, and the issues in contention primarily revolve around directorship and shareholding within the said corporate entity. It is a cardinal principle of company law, firmly established in Salomon V Salomon & Co. Ltd, [1897] AC 22, that a company is a distinct legal person, separate from its directors and shareholders.
10. Accordingly, a company has legal capacity to sue and be sued in its own name, and in doing so, it acts in pursuit of the interests of the company as a whole, and not of any individual director or shareholder. In this regard, the joinder of the 2nd plaintiff has been satisfactorily explained to the Court. That joinder does not entitle other co-directors to be enjoined as of right.
11. It follows, therefore, that directors cannot be joined to proceedings merely by virtue of their position within the company. For a director to be properly enjoined, there must be a factual or legal foundation establishing that the director played a direct and substantive role in the impugned transaction, or that liability is being asserted against them in their personal capacity. Absent such a basis, joinder of a director would offend the corporate personality doctrine and undermine the functional integrity of the company's litigation.
12. Going back to the present suit, the applicant has not demonstrated that he has a personal claim against the defendants or a cause of action that is separate from that of the 1st plaintiff. His basis for seeking joinder is primarily that he is a director and shareholder, and that he no longer agrees with the manner in which the suit is being prosecuted by the company’s current advocates and his co-directors.
13. This alone is not sufficient to warrant joinder. As already stated, the company is a separate legal entity and is duly represented by counsel, whose appointment was confirmed by the Court. The applicant does not indicate any specific relief that he seeks in his own right. On the contrary, the respondents warn that his inclusion as a co-plaintiff may lead to conflicting positions, procedural confusion, and possible derailment of the suit. In any case, where a shareholder or director believes that the company is not acting in its best interest, there are proper channels to having those disputes resolved under the Companies Act, which is not by seeking to be added as a co-plaintiff in an action already commenced by the company.
14. The 1st defendant has indicated an intention to cross-examine the applicant on certain documents forming part of the trial bundle, including the Board Resolution relied upon in his application. This, in itself, does not elevate the applicant to the status of a necessary party for purposes of joinder under Order 1 Rule 10 of the Civil Procedure Rules. Should the Court deem it appropriate at the trial stage, the applicant may be summoned as a witness or examined on affidavit, but this does not necessitate his formal joinder as a party to the suit.
Disposition
15. In view of the foregoing, the Court finds that the applicant has not established a sufficient legal or factual basis to justify his joinder as a co-plaintiff in these proceedings. The application dated 21st February 2025 is therefore dismissed. Each party shall bear their own costs. It is so ordered.
1. The Court is called upon to determine the application dated 21st February 2025 brought by Mr. Kepher Otichilo Susu, who seeks to be joined in these proceedings as a co-plaintiff. The application is expressed to be brought under Order 1 Rule 10 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The applicant grounds his application on the fact that he is a shareholder and director of the 1st plaintiff company, Park Towers Limited, and asserts that he has a direct and personal interest in the outcome of these proceedings.
2. He contends that he was previously granted leave on 9th March 2022 to act in person, but due to financial constraints, he was not able to retain counsel. He further asserts that his joinder as a party-plaintiff is necessary for the effectual and complete adjudication of the questions in controversy in this suit.
3. The application is opposed by the 1st and 2nd plaintiffs. Mr. Hudson Omemu, a director of the 1st plaintiff, confirms the applicant’s status as a founding shareholder and director but asserts that the applicant’s interests are fully represented by the current counsel on record, M/s Mbiriri Ngugi & Co. Advocates, whose appointment was confirmed by this Court in a prior ruling.
4. The 2nd plaintiff, Mr. Sammy D. Muathe, similarly opposes the application, contending that he holds valid authority under a Special Power of Attorney dated 13th October 2020 and a prior consent order made in Civil Suit No. 871 of 1997, to represent the company’s interests in this matter. He confirms that his joinder as the 2nd plaintiff herein was as a result of the consolidation of this matter with JR E058/2021 in which he was the ex parte applicant.
5. The 1st defendant also filed a replying affidavit sworn on 12th May 2025, in which she expresses her intention to seek the cross-examination of Mr. Kepher Otichilo Susu on the contents of the Board Resolution relied upon in his application, as well as other documents forming part of the trial bundle. It is her position that the applicant is a relevant party to these proceedings, and that at the appropriate stage of the trial, the defence intends to subject him to cross-examination on the said documents and the broader matters in contention.
Analysis and Determination
6. I have carefully considered the application, responses thereto and the written submissions filed by the respective parties. The central question for determination is whether the applicant has met the threshold for joinder as a co-plaintiff under Order 1 Rule 10(2) of the Civil Procedure Rules which provides that:
“The court may at any stage of the proceedings, either upon or without the application of either party... order that the name of any person who ought to have been joined, 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.”
7. The principles governing joinder of parties have been the subject of authoritative pronouncement by the Supreme Court in amongst others, Muruatetu & Another V Republic; Kenya National Commission on Human Rights & 2 Others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR). The Court stated:
“Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements: 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. 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. 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.”
8. For this application to succeed, the applicant must establish that he has a direct and identifiable legal interest in the subject matter of the suit, which is distinct from that of the existing parties. It must be more than a general interest or mere association with the 1st plaintiff company. Crucially, he must demonstrate that without his presence, the Court will be unable to effectually and completely adjudicate upon all the issues in controversy. It must also be shown that his interest cannot be adequately represented by the existing plaintiffs. Absent such proof, joinder would serve no useful purpose and may instead compromise the coherent and orderly prosecution of the suit.
9. The principle of separate legal personality remains central to the determination of the present application. The suit before this Court was instituted by the company in its own name, and the issues in contention primarily revolve around directorship and shareholding within the said corporate entity. It is a cardinal principle of company law, firmly established in Salomon V Salomon & Co. Ltd, [1897] AC 22, that a company is a distinct legal person, separate from its directors and shareholders.
10. Accordingly, a company has legal capacity to sue and be sued in its own name, and in doing so, it acts in pursuit of the interests of the company as a whole, and not of any individual director or shareholder. In this regard, the joinder of the 2nd plaintiff has been satisfactorily explained to the Court. That joinder does not entitle other co-directors to be enjoined as of right.
11. It follows, therefore, that directors cannot be joined to proceedings merely by virtue of their position within the company. For a director to be properly enjoined, there must be a factual or legal foundation establishing that the director played a direct and substantive role in the impugned transaction, or that liability is being asserted against them in their personal capacity. Absent such a basis, joinder of a director would offend the corporate personality doctrine and undermine the functional integrity of the company's litigation.
12. Going back to the present suit, the applicant has not demonstrated that he has a personal claim against the defendants or a cause of action that is separate from that of the 1st plaintiff. His basis for seeking joinder is primarily that he is a director and shareholder, and that he no longer agrees with the manner in which the suit is being prosecuted by the company’s current advocates and his co-directors.
13. This alone is not sufficient to warrant joinder. As already stated, the company is a separate legal entity and is duly represented by counsel, whose appointment was confirmed by the Court. The applicant does not indicate any specific relief that he seeks in his own right. On the contrary, the respondents warn that his inclusion as a co-plaintiff may lead to conflicting positions, procedural confusion, and possible derailment of the suit. In any case, where a shareholder or director believes that the company is not acting in its best interest, there are proper channels to having those disputes resolved under the Companies Act, which is not by seeking to be added as a co-plaintiff in an action already commenced by the company.
14. The 1st defendant has indicated an intention to cross-examine the applicant on certain documents forming part of the trial bundle, including the Board Resolution relied upon in his application. This, in itself, does not elevate the applicant to the status of a necessary party for purposes of joinder under Order 1 Rule 10 of the Civil Procedure Rules. Should the Court deem it appropriate at the trial stage, the applicant may be summoned as a witness or examined on affidavit, but this does not necessitate his formal joinder as a party to the suit.
Disposition
15. In view of the foregoing, the Court finds that the applicant has not established a sufficient legal or factual basis to justify his joinder as a co-plaintiff in these proceedings. The application dated 21st February 2025 is therefore dismissed. Each party shall bear their own costs. It is so ordered.