' 1. Before me is a Notice of Motion dated 24th May 2024 by the Association of Kenya Professional Insurance Agents (AKPIA), seeking to be joined as an Interested Party in this appeal.
2. The Appellant did not oppose the application. The Interested Party, First Assurance Company Limited, opposed it by a replying affidavit sworn on 4th June 2024, together with submissions resisting joinder.
3. The Applicant contended that it is the umbrella body representing professional insurance agents in Kenya, mandated to safeguard the rights and interests of its members. It argued that the outcome of this appeal, which involves issues of commissions payable to agents, will have a direct impact on its members’ work environment.
4. It invoked Order 1 Rule 10(2) of the Civil Procedure Rules, and relies on Muruatetu & Another v Republic & 5 Others [2016] KESC 12, urging that its participation will avert multiplicity of suits and enable the Court to fully appreciate the issues at stake. It further contended that its role is to provide information and guidance to the players in the insurance marked in Kenya, and as such, it is a necessary party to determine the issues.
5. The Interested Party submitted that the dispute is a contractual one between itself and the Appellant, to which AKPIA is not privy. It argued that the Applicant had the opportunity to apply for joinder before the Insurance Appeals Tribunal, but failed to do so. Nor has it filed any draft submissions to show how its joinder will benefit the court, or how it will suffer if joinder is denied.
6. Finally, it contended that the appellate court is confined to the record of the Tribunal, and joinder at this stage would impermissibly enlarge the record and introduce fresh issues.
Issue for Determination
7. The issue for determination is whether this Court, sitting as an appellate court, can join AKPIA as an Interested Party at this stage of proceedings.
Analysis and Determination:
8. The application is premised on Order 1 Rule 10(2) of the Civil Procedure Rules. That rule empowers a trial court to join a party whose presence is necessary for effectual adjudication of a dispute. The jurisprudence, including Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR, makes clear that joinder is discretionary but must be grounded in proximate interest and demonstrable prejudice.
9. However, the present proceedings are not at the trial stage. This is an appeal from the Insurance Appeals Tribunal. An appellate court is, by its nature, a court of record. Its jurisdiction is to review the decision of the Tribunal on the basis of the evidence and pleadings placed before that Tribunal. It is not the forum to admit new parties, evidence or issues, save under very narrow statutory exceptions. No such exceptions or compelling reasons have been advanced by the Applicant to justify the same,
10. The Applicant was not a party before the Tribunal. It did not seek joinder at that stage. The Tribunal’s judgment is complete, and the record certified for appeal. For this Court to admit a new party now, would be to enlarge the record and introduce matters not considered by the Tribunal. That in my view, is beyond the remit of this Court sitting in its appellate jurisdiction.
11. I am persuaded by Interested Party’s submission that, if AKPIA’s interests were truly proximate, the proper course was to apply for joinder at the Tribunal. The failure to do so at that stage of the proceedings may not be cured by seeking joinder at the appellate stage absent compelling reasons. To permit otherwise would simply blur the boundaries between trial stage and appellate stage of the proceedings. I do not intend to do so.
Disposition
12. In the circumstances, I find that the application dated 24th May 2024 is without merit. Accordingly, the Notice of Motion is dismissed with costs.
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2. The Appellant did not oppose the application. The Interested Party, First Assurance Company Limited, opposed it by a replying affidavit sworn on 4th June 2024, together with submissions resisting joinder.
3. The Applicant contended that it is the umbrella body representing professional insurance agents in Kenya, mandated to safeguard the rights and interests of its members. It argued that the outcome of this appeal, which involves issues of commissions payable to agents, will have a direct impact on its members’ work environment.
4. It invoked Order 1 Rule 10(2) of the Civil Procedure Rules, and relies on Muruatetu & Another v Republic & 5 Others [2016] KESC 12, urging that its participation will avert multiplicity of suits and enable the Court to fully appreciate the issues at stake. It further contended that its role is to provide information and guidance to the players in the insurance marked in Kenya, and as such, it is a necessary party to determine the issues.
5. The Interested Party submitted that the dispute is a contractual one between itself and the Appellant, to which AKPIA is not privy. It argued that the Applicant had the opportunity to apply for joinder before the Insurance Appeals Tribunal, but failed to do so. Nor has it filed any draft submissions to show how its joinder will benefit the court, or how it will suffer if joinder is denied.
6. Finally, it contended that the appellate court is confined to the record of the Tribunal, and joinder at this stage would impermissibly enlarge the record and introduce fresh issues.
Issue for Determination
7. The issue for determination is whether this Court, sitting as an appellate court, can join AKPIA as an Interested Party at this stage of proceedings.
Analysis and Determination:
8. The application is premised on Order 1 Rule 10(2) of the Civil Procedure Rules. That rule empowers a trial court to join a party whose presence is necessary for effectual adjudication of a dispute. The jurisprudence, including Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR, makes clear that joinder is discretionary but must be grounded in proximate interest and demonstrable prejudice.
9. However, the present proceedings are not at the trial stage. This is an appeal from the Insurance Appeals Tribunal. An appellate court is, by its nature, a court of record. Its jurisdiction is to review the decision of the Tribunal on the basis of the evidence and pleadings placed before that Tribunal. It is not the forum to admit new parties, evidence or issues, save under very narrow statutory exceptions. No such exceptions or compelling reasons have been advanced by the Applicant to justify the same,
10. The Applicant was not a party before the Tribunal. It did not seek joinder at that stage. The Tribunal’s judgment is complete, and the record certified for appeal. For this Court to admit a new party now, would be to enlarge the record and introduce matters not considered by the Tribunal. That in my view, is beyond the remit of this Court sitting in its appellate jurisdiction.
11. I am persuaded by Interested Party’s submission that, if AKPIA’s interests were truly proximate, the proper course was to apply for joinder at the Tribunal. The failure to do so at that stage of the proceedings may not be cured by seeking joinder at the appellate stage absent compelling reasons. To permit otherwise would simply blur the boundaries between trial stage and appellate stage of the proceedings. I do not intend to do so.
Disposition
12. In the circumstances, I find that the application dated 24th May 2024 is without merit. Accordingly, the Notice of Motion is dismissed with costs.
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