[2022] KEHC 13621 (KLR)

Assets Recovery Agency v Njoroge; Mesel (Proposed Interested Party) (Civil Application E006 of 2022) [2022] KEHC 13621 (KLR) (Anti-Corruption and Economic Crimes) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13621 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Civil Application E006 of 2022

EN Maina, J

October 6, 2022

Between

Assets Recovery Agency

Applicant

and

Felesta Nyamathira Njoroge

Respondent

and

Marc Freddy De Mesel

Proposed Interested Party

Ruling

1. By a notice of motion application filed under a certificate of urgency dated March 16, 2022, Marc Freddy De Mesel (the “Proposed Interested Party”) seeks to be enjoined as an interested party in these proceedings.

2. The application is made under sections 1a,1b,3a, and section 63(e) of the Civil Procedure Act, order 51 rule 1 and 3 of the Civil Procedure Rulesand section 93 of the Proceeds of Crime and Anti-Money Laundering Act, 2009 and seeks orders that:1. Spent2. Marc Freddy De Mesel the proposed interested party be and is hereby joined in these proceedings as an interested party and be at liberty to file such pleadings, affidavits and documents in support of his case3. The court grants any other relief it might deem fit to grant in the circumstances4. Costs of this application to be in the cause.

3. The application is made on the grounds stated on the face of it and the supporting affidavit of the proposed interested party sworn on March 16, 2022 as follows:“1)That the proposed interested party/ applicant is the benefactor of the respondent and is the one who sent her the funds that are the subject matter of the suit.2. That proposed interested party has been mentioned adversely both directly and indirectly as a conspirator of money laundering and hence should be given an opportunity to defend himself.3. That proposed interested party is a world renowned figure in the areas of crypto-currency, forex and stock trading and is able to show how he got access to the funds that he sent to the respondent.4. That the proposed interested party is ready and willing to provide the court with such details and documentary proof of the source of the said funds and the legitimacy thereof.5. That respondent felesta nyamathira njoroge and the proposed interested party have been engaged for a while in a romantic relationship leading to the birth of a beautiful baby, it is on the backdrop of the existence of this relationship and being mindful of the welfare of the respondent and the then expected child, that the proposed interested party made early plan to ensure that his girlfriend together with the baby live comfortably. The proposed interested party is therefore seeking to be joined to the proceedings herein in order to give an account and an explanation that informed his decision to remit the said funds.6. That the interested party is necessary for the determination of the real issues in dispute and/ or his presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit.7. That the interest of Justice and fairness demands that the application be allowed as prayed.”

4. The assets recovery agency/respondent vehemently opposes the application through the replying affidavit of sgt. Fredrick Musyoki sworn on May 6, 2022.

5. The respondent avers that the application lacks merit as it does not meet the prerequisite set out in section 93 of the Proceeds of Crime and Anti-Money Laundering Act which provides for protection of third-party rights; The proposed interested party lacks locus as he does not claim an interest in the subject matter of the forfeiture and that being a benefactor of the respondent is not a ground set out under section 93 of the Proceeds of Crime and Anti-Money Laundering Act. Further, that the proposed interested party has not demonstrated an identifiable stake, legal interest, duty or the prejudice he would suffer to warrant the joiner as an interested party. Lastly, that the applicant had an opportunity to explain himself while investigations were ongoing and the respondent was invited to record a statement but instead he elected to flee the country to Tanzania through the Namanga border crossing point and thereafter allegedly to Belgium.

6. The application was canvassed by way of written submissions. The proposed interested party’s submissions are dated June 21, 2022 while those of the Respondent are dated July 22, 2022.

7. Felista Nyamathira the respondent in the main application did not take part in the applications.

Analysis and determination 8. The principle for joinder of interested parties was laid by the Supreme Court of Kenya in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5others sc Petition (Application) No 12 of 2013 and affirmed by the same court inFrancis Karioki Muruatetu & another v Republic & 5 others[2016] eKLR. The court stated:-“(37)From the foregoing legal provisions, and from the case law, 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 is 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.”

9. The joinder of an interested party does not materially change the cause of action and the issues to be determined. In the case of Francis Karioki Muruatetu & another v Republic & 5 others[2016] eKLR the Supreme Court stated:-“(42)Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues, or introduce new issues for determination by the court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the court. That stake cannot take the form of an altogether a new issue to be introduced before the court.”

10. The objective for joinder applications is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, or inconvenience and to avoid multiplicity of proceedings. Any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined. In the case of Meme vs Republic (2004) KLR 637 the Court of Appeal while considering an application for joinder held that joinder will be permissible:1. Where the presence of the party will result in the complete settlement of all the questions involved in the proceedings;2. Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and3. Where the joinder will prevent a likely course of proliferated litigation.

11. The proposed interested party contends that he is the benefactor of the respondent, through their romantic relationship and is source of the funds in issue, which he alleges to be for the welfare of their child. He contends further that he is a necessary party to these proceedings and his presence will assist the court in determining the real issues in dispute and enable the court to effectively adjudicate upon and settle all the questions involved in the suit. Indeed, the respondent in her replying affidavit sworn on March 16, 2022 avers that she received the funds from the proposed interested party. In my view therefore, the proposed interested party has demonstrated that he is a necessary party to these proceedings. He has claimed an interest in the funds subject of the forfeiture proceedings and has also been mentioned by the Respondent as the source of the said funds. It is in the interests of justice that the proposed interest party be granted an opportunity to take part in the proceedings as doing so will result in the complete settlement of all questions involved thereat. Accordingly, the notice of motion dated March 16, 2022 is allowed and prayer 2 is granted as prayed. Costs shall be in the cause.

Signed, dated and delivered virtuallythis 6thday of October, 2022. E N MAINAJUDGE