https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12851

Easthall Logistics Ltd v Lasuba Logistics Ltd & 4 others (Civil Suit E077 of 2023) [2026] KEHC 12851 (KLR) (14 August 2026) (Ruling) Neutral citation: [2026] KEHC 12851 (KLR) Republic of Kenya In the High Court at Mombasa Civil Suit E077 of 2023 J Ngaah, J August 14, 2026 Between Easthall Logistics Limited Plaintiff and Lasuba Logistics Limited 1st Defendant Victor Olingo Odhiambo 2nd Defendant Buri Transporters Limited 3rd Defendant and Maersk (K) Limited 1st Proposed Interested Party Temesgen Trading Company Limited 2nd Proposed Interested Party Ruling Introduction 1.Before the court is the plaintiff’s notice of motion dated 25th June 2025, expressed to be brought under sections 1A, 1B, 3A and 100 of the Civil Procedure Act, Order 1 rule 6 of the Civil Procedure Rules and all other enabling provisions of the law. Shorn of the prayer that is now spent, the motion seeks three substantive orders: leave to join Maersk (K) Limited and Temesgen Trading Company Limited as interested parties to these proceedings; leave to amend the plaint in terms of an annexed draft amended plaint ; and an order that the draft amended plaint be deemed duly filed upon payment of the requisite fees. The last prayer is for costs. The motion is supported by the affidavit of John Halowe, a director of the plaintiff. 2.A word on the parties’ names is necessary at the outset. The two entities sought to be joined are rendered inconsistently in the pleadings — variously as “Mearsk” or “Maersk”, and as “Tensgen”, “Temsgen” or “Temesgen”. I take their correct names to be Maersk (K) Limited and Temesgen Trading Company Limited, and I adopt those forms throughout this ruling. The plaintiff’s case 3.The plaintiff is a clearing and forwarding agent. Its case, as deposed to by Mr Halowe, is briefly this. Temesgen, the proposed 2nd interested party, acting through the 2nd defendant, imported 45 Massey Ferguson tractors from Millat Tractors Limited of Pakistan, consigned through the Port of Mombasa for onward carriage to Juba, South Sudan. 4.The 2nd defendant, who is said to be a director of the 1st defendant, instructed the plaintiff to clear the consignment. By a letter dated 13th January 2023, Temesgen informed Maersk, the proposed 1st interested party, that it had appointed the plaintiff to clear the tractors on its behalf. Maersk issued a delivery order dated 23rd January 2023 and released the tractors in 15 containers, each carrying three units. The plaintiff paid Maersk USD 30,000 as security for the containers, a sum refundable upon the return of the empty containers by 15th February 2023. 5.The consignment was carried towards Juba on the 3rd defendant’s trucks but was, the plaintiff says, offloaded at a place called Elegu instead of Juba, and the empty containers were not returned within the stipulated time. The plaintiff contends that, in consequence, it was blacklisted by Maersk and other shipping lines and compelled to sub-contract its clearing work to Zula Global Limited at USD 2,500 per month; that it lost USD 318,900 in demurrage, for which it holds the 3rd defendant liable; that Maersk continues to hold its USD 30,000 deposit; and that, after this court directed the release of the containers, it paid Hakika Transporters Limited Kshs 380,000/= to move the empty containers back to Maersk. 6.It is upon this narrative that the plaintiff seeks to bring in Maersk and Temesgen and to amend its plaint, so that, in its own words, the issues between the parties may be determined once and for all and a multiplicity of suits avoided. 7.The draft amended plaint itself was annexed to Mr Halowe’s affidavit. Its contents are set out in the proposed 1st interested party’s submissions and are not disputed by the plaintiff. On that account, the plaintiff intends by the amendment to seek: a refund of the USD 30,000 deposit, to be recovered directly from Temesgen; in the alternative, an order to lay a lien over and to sell Temesgen’s goods on transit or within the country so as to recover USD 318,900; and Kshs 380,000 from the 3rd defendant. The significance of these intended reliefs I address in due course. The opposition 8.Of the two entities sought to be joined, only Maersk responded. It filed grounds of opposition dated 28th August 2025 and written submissions dated 30th November 2025. The proposed 2nd interested party, Temesgen, did not participate in the application, although it appears from the service lists to have been notified. 9.Maersk’s opposition, distilled from its six grounds, is as follows: that the plaintiff has demonstrated no justiciable relationship with Maersk that would necessitate its joinder; that bringing Maersk in would introduce issues foreign to the principal cause of action and would enlarge the scope and alter the nature of the dispute; that the plaintiff has shown no prejudice it would suffer were Maersk not joined; that Maersk itself would be prejudiced, having no opportunity to file a defence or to participate meaningfully in the trial; that the plaintiff’s remedy, if any, lies against the defendants and may be pursued without Maersk; and that the application fails to meet the threshold for interested-party joinder, in that the plaintiff has shown neither a legitimate identifiable stake on Maersk’s part, nor that the outcome would directly and substantially affect Maersk, nor that Maersk’s participation is necessary for the effectual adjudication of the issues raised in the plaint. Submissions 10.For the plaintiff it was submitted that a dispute plainly exists between the plaintiff on the one hand and the defendants and the intended parties on the other; that Maersk was involved in the transport arrangements and holds the plaintiff’s USD 30,000; and that it is therefore a necessary party whose joinder would avoid a multiplicity of suits. The plaintiff relied on the Supreme Court’s decision in Communications Commission of Kenya & 4 others v Royal Media Services Limited & others [2014] eKLR, which adopted the well-known description of an interested party in the Mumo Matemu case; on Meme v Republic (2004) 1 EA 124; and on Order 1 rule 10(2) of the Civil Procedure Rules. 11.For Maersk it was submitted that the Civil Procedure Act and the rules made under it do not define an interested party, and that guidance must be drawn from Black’s Law Dictionary, the Court of Appeal Rules 2022 and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. Maersk relied on Trusted Society of Human Rights Alliance v Matemu & 5 others, on Muruatetu & another v Republic, and on Attorney-General v David Ndii & 73 others, urging that an interested party must have an identifiable and proximate stake, must demonstrate the prejudice it would suffer on non-joinder, and may not introduce fresh issues or a new cause of action; and that, in any event, no relief at all is sought against Maersk. Issues for determination 12.Three issues arise. First, whether Maersk and Temesgen ought to be joined as interested parties — a question that cannot be answered without confronting the further question, whether, given the reliefs the plaintiff intends to pursue against them, they ought properly to be sued as defendants. Second, whether leave to amend the plaint should be granted. Third, costs. Analysis and determination (a) The nature and limits of interested-party status 13.The expression “interested party” is not defined in the Civil Procedure Act or in the rules made under it. It is, in truth, a creature principally of constitutional and judicial review practice. Black’s Law Dictionary (9th edition) describes an interested party as one who has a recognisable stake, and therefore standing, in a matter. Rule 2 of the Court of Appeal Rules 2022 and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 are to similar effect, describing an interested party as a person or entity that has an identifiable stake, legal interest or duty in the proceedings but is not a party to them. 14.Our courts have settled the governing principles. In the Mumo Matemu case, as adopted by the Supreme Court in Royal Media Services, an interested party was described as one who has a stake in the proceedings though not a party ab initio, and who will be affected by the decision of the court either way, such that his interest will not be well articulated unless he himself appears to champion it. In Attorney-General v David Ndii & 73 others the elements were put in three parts: the party must set out a personal stake or interest that is clearly identifiable and proximate, and not merely peripheral; must demonstrate the prejudice it would suffer on non-joinder, clearly outlined and not remote; and must set out the case or submissions it intends to make, together with their relevance, and show that they are not a mere replication of what the principal parties will urge. 15.To these must be added a limitation upon which, in my view, the whole of the present application turns. In Muruatetu & another v Republic the Supreme Court made plain that the stake of an interested party cannot take the form of a new issue or a fresh cause of action. The Court held:“… we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties before the Court … 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 … That stake cannot take the form of an altogether new issue to be introduced before the Court.” 16.The defining features of an interested party are therefore twofold and cumulative. First, the party must have a stake in the controversy as it already exists. Second, and this is the feature too often overlooked, the party is confined to that existing controversy: it prosecutes no claim of its own, it introduces no fresh cause of action, and, crucially, no relief is sought by it or against it. An interested party comes to illuminate or to protect an interest within the dispute as already framed by the principal parties; it does not come to sue, and it does not come to be sued. Interested party or defendant? 17.It is against that second feature that the plaintiff’s application founders, and it is here that the question I posed must be answered. A defendant is a person against whom a plaintiff asserts a cause of action and from whom the plaintiff seeks relief. The incidents of that status are fundamental: a defendant is entitled to be served with the claim against it, to file a defence, to adduce and to test evidence, and to put the plaintiff to proof of its claim. An interested party bears none of these incidents, for the simple reason that no claim is made against it. The two statuses are not interchangeable, and the difference between them is not one of nomenclature but of substance, and of constitutional right. To fasten a claim upon a person while confining it to the truncated role of an interested party would be to deny that person the fair hearing guaranteed by Article 50(1) of the Constitution and by the rules of natural justice. That, indeed, is the very grievance Maersk articulates when it protests that, if joined as an interested party, it would have no opportunity to file a defence or to participate meaningfully in the trial. 18.When the plaintiff’s application is measured against this distinction, its difficulty is plain. The plaintiff does not seek to bring in Maersk and Temesgen merely so that they may address the court, within the existing controversy, upon some matter of law or fact. On the plaintiff’s own showing, and on the face of the draft amended plaint as described to me, it seeks substantive and coercive relief against them: the refund of the USD 30,000 deposit “directly from Temesgen”; an order to lay a lien over and to sell Temesgen’s goods in order to recover USD 318,900; and the recovery of a deposit admittedly held by Maersk. These are not the interventions of an interested party. They are claims. A prayer that the court lay a lien over a person’s goods and sell them to satisfy a debt is about as substantive a claim as may be made against that person. 19.Two consequences follow, and they are fatal to the prayer for joinder however the matter is approached. In so far as the plaintiff has a cause of action against Maersk and Temesgen, the proper, and indeed the only, course is to sue them: to join them as defendants under Order 1 rule 10(2) of the Civil Procedure Rules, upon a properly amended plaint that pleads the cause of action and the reliefs sought against them, and that accords them the full rights of a defendant. It is not open to the plaintiff to obtain the substance of a claim against these entities while denying them the status, and the protections, of a defendant. 20.It is telling that the very rule upon which the plaintiff relies points in this direction. Order 1 rule 10(2) empowers the court, at any stage of the proceedings, to 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 the questions involved in the suit, be added. But the rule speaks throughout of the joinder of a person “as plaintiff or defendant.” It knows nothing of joinder as an “interested party.” The mechanism the plaintiff invokes is, on its own terms, a mechanism for adding parties in the ordinary sense, which is precisely what the plaintiff should have sought if it has claims to make. 21.The second consequence concerns the alternative case. In so far as no relief is in fact sought against a proposed party, that party fails the interested-party test in any event. Maersk itself submits, correctly, on the material before me, that the plaintiff “has not sought any reliefs against Maersk.” If that is so, then Maersk has no identifiable stake that it wishes to assert (on the contrary, it asks to be left out); the plaintiff has demonstrated no prejudice it would suffer from Maersk’s absence; and Maersk’s presence is not necessary for the determination of the plaintiff’s claims against the defendants. On this footing too the prayer must fail. The plaintiff is thus caught either way: if it has claims against these entities, those claims belong in a suit against them as defendants; if it has none, there is no basis upon which to join them at all. 22.There is a further and connected difficulty. The rule in Muruatetu forbids an interested party from introducing a fresh cause of action or new issues. Yet the amendment the plaintiff proposes would do precisely that: the claim for a refund from Temesgen, and in particular the claim to lay a lien over and to sell Temesgen’s goods, are new causes of action that form no part of the controversy as presently framed between the plaintiff and the defendants. That these reliefs cannot be accommodated within the interested-party framework is not a pleading technicality. It confirms that Maersk and Temesgen are not interested parties at all. 23.I would add this. The plaintiff’s stated objective, to avoid a multiplicity of suits and to have all issues resolved in one forum, is a legitimate one, and it is an objective this court shares and which the overriding objective in sections 1A and 1B of the Civil Procedure Act promotes. But that objective is attained by joining necessary parties as defendants and pleading the claims against them, not by mislabelling them as interested parties. The overriding objective is a spur to getting the procedure right; it is not a licence to bend it. 24.For completeness, I have considered whether the court should, of its own motion, add Maersk and Temesgen as defendants under Order 1 rule 10(2). I decline to take that course on the present material. Temesgen has not been heard at all; the claims the plaintiff wishes to advance, the lien-and-sale claim in particular, are unusual and must be properly pleaded and tested; and it would not be just to convert, by judicial fiat, an application for interested-party joinder into an order for defendant-joinder that neither entity has had a proper opportunity to address. The appropriate course is to leave the plaintiff to pursue its proper remedy in the proper form. The amendment 25.The prayers for leave to amend, and for the draft amended plaint to be deemed filed (prayers 3 and 4), stand or fall with the joinder. The proposed amendment does not merely refine the plaintiff’s existing claim against the existing defendants; it seeks to plead claims against a person who is not a party, Temesgen in particular, under the guise of interested-party joinder. An amendment that pleads a cause of action against a non-party cannot be allowed unless that person is joined as a party in a capacity apt to bear the claim; and I have declined to join Maersk and Temesgen in the only capacity for which the plaintiff has asked. The amendment, as framed, therefore cannot be granted. Costs 26.Costs follow the event. Maersk appeared and successfully resisted an application that ought not to have been brought against it in the form it took, and it is entitled to its costs. Temesgen did not participate, and there will be no order as to its costs. Disposition 27.For the reasons I have given, the plaintiff’s notice of motion dated 25th June 2025 substantially fails, and I make the following orders:(a)Prayer 2, for leave to join Maersk (K) Limited and Temesgen Trading Company Limited as interested parties to these proceedings, is declined and is hereby dismissed.(b)Prayers 3 and 4, for leave to amend the plaint in terms of the draft amended plaint and for the draft amended plaint to be deemed duly filed, are, as framed, declined.(c)The costs of the application are awarded to the proposed 1st interested party, Maersk (K) Limited, to be borne by the plaintiff. There shall be no order as to the costs of the proposed 2nd interested party. 28.Orders accordingly. DATED, SIGNED AND PUBLISHED ON 14TH AUGUST 2026NGAAH JAIRUSJUDGE