[2022] KEHC 1503 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 253 OF 2020

FRANCIS NDONGA T/A JOFFA AGENCIES............................................APPELLANT

VERSUS

STEVE MAINA & PERIS NJOKI (Suing as the

Chairman and Secretary of CLOUD YOUTH GROUP)......................1ST RESPONDENT

NAIROBI CITY COUNTY.....................................................................2ND RESPONDENT

(Being an appeal against the ruling and order of Honourable L. L. Gicheha (Mrs.) (Chief Magistrate) delivered on 29th May, 2020 in MILIMANI CMCC no. 10610 of 2018)

JUDGMENT

1. The 1st respondent in this instance instituted a suit before the Chief Magistrate’s Court by way of the plaint 3rd December, 2018 and sought for declaratory and injunctive orders plus costs of the suit and interest thereon against the 2nd respondent arising out of contract.

2. The 1st respondent pleaded in their plaint that pursuant to an allocation for public toilets within the country, it applied for and was allocated City Stadium Toilet (“the subject toilet”) and a letter of award was issued to that effect.

3. The 1st respondent further pleaded in their plaint that it subsequently entered into a three (3) year contractual agreement with the 2nd respondent commencing from October, 2018 wherein the latter agreed to allocate to the former the management of the public toilet upon payment of the sum of Kshs.20,000/=.

4. It was pleaded in the plaint that the 2nd respondent then granted the 1st respondent possession of the subject toilet and that the latter was therefore the rightful tenant.

5. It was also pleaded in the plaint that the 2nd respondent then threatened to terminate the contract with the 1st respondent and to issue the same to third parties, while its employees/agents had been interfering with the 1st defendant’s occupation and management of the subject toilet.

6. The plaint accompanied the application of like date wherein the 1st respondent sought for an interlocutory injunction against the 2nd respondent in respect to the subject toilet pending the hearing and determination of the suit.

7. By way of the consent order recorded in court on 27th June,2019 the trial court granted the interlocutory injunctive order sought.

8. Subsequently, the appellant filed the application dated 9th August, 2019 and sought to be enjoined in the suit as an interested party and further sought for the setting aside of the consent order recorded in court on 27th June, 2019 and giving rise the interlocutory injunctive orders. The appellant also sought for an order of stay, setting aside/vacating of the order directing the OCS Makongeni Police Station and Shaurimoyo Police Station to evict the appellant. The application was opposed by the 2nd respondent.

9. Upon hearing the parties on the abovementioned application,the trial court dismissed it with costs vide its ruling delivered on 29th May, 2020.

10. Being aggrieved by the aforementioned ruling, the appellant sought to challenge the same by way of an appeal. Through his memorandum of appeal dated 26th June, 2020 the appellant put in the following grounds:

(i) THAT the learned trial magistrate erred in law and in fact in finding that the application by the appellant lacked merit in its entirety.

(ii) THAT the learned trial magistrate erred in fact and in law in failing to appreciate and consider the overwhelming evidence on record thereby arriving at a decision which is self-defeating and not capable of addressing the issues raised in the application.

(iii) THAT the learned trial magistrate erred in fact and in law in arriving at a decision which has disposed of the entire suit without according the appellant hearing of the substance of the suit in clear breach of constitutional rights to fair hearing as provided for in Article 47 and 50 of the Constitution.

(iv) THAT the learned trial magistrate erred in law by descending in the dispute by determining issues which were not canvassed by the parties in the application thereby arriving at a biased decision in favour of the respondents.

(v) THAT the learned trial magistrate erred in law and in fact by arriving at a decision that:

a. The appellant’s contract was terminated.

b. The appellant was not in control of the toilet anymore.

c. The 1st respondent was in control of the said toilets.

d. The appellant was evicted from the suit premises on 8th October, 2018 or at all.

e. The 1st respondent took over the public toilets and has been in possession since then.

(vi) THAT the learned trial magistrate misdirected herself as to the fact in issue in the application brought before her and the principles of law to be applied in determining the application by:

a. Misapplying the decision in Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR and Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR.

b. Misapplying the appellant’s interest in the suit property as only that of management of public toilets at the city stadium.

11. At the directions by this court, the parties put in written submissions on the appeal. The appellant vide his submissions dated 7th June, 2021 argues that the trial court did not correctly analyze the evidence which was placed before it.

12. The appellant also argues that despite him meeting the threshold for enjoinment as an interested party in the suit, the trial court did not allow the application for enjoinment.

13. It is also the submission by the appellant that the trial court focused on issues which had not been raised before it at the time, namely that the issue pertaining to the appellant’s contract with the 2nd respondent commencing 3rd October, 2018, while no such issue had been placed and that the contract had been terminated.

14. The 1st respondent by way of their submissions dated 3rd September, 2021 supports the decision made by the trial court and argues that the contract between the appellant and the 2nd respondent was extinguished by that entered into between the respondents herein and hence the appellant would have no identifiable stake in the suit.

15. The 1st respondent further argues that contrary to the assertions being made by the appellant, there has been no collision between the respondents herein in entering into the consent which was later made an order of the court, and hence the allegations made by the appellant are unfounded.

16. The 1st respondent supports the reasoning by the trial court that in the event that the appellant is aggrieved by the decision of the 2nd respondent to issue a contract to a different party, he ought to institute a separate suit against the 2nd respondent.

17. On its part, the 2nd respondent essentially associates itself with the submissions of its counterpart while adding that by law, a court cannot rewrite a contract entered into between parties.

18. For all the foregoing reasons, the 1st and 2nd respondents are of the view that the appeal must fail.

19. I have considered the contending submissions on appeal. I have likewise re-evaluated the material placed before the trial court. It is clear that the appeal fundamentally lies against the trial court’s decision to dismiss the appellant’s application. I will therefore deal with the grounds of appeal contemporaneously.

20. The gist of the appeal rides on whether the learned trial magistrate arrived at a reasonable finding in view of the material which was placed before her.

21. As earlier established, the appellant by way of the application dated 9th August, 2019 sought for two (2) key orders: enjoinment in the suit as an interested party and the vacating/setting aside of the consent order in force together with consequent orders issued.

22. The application was supported by the affidavit sworn by the appellant, who stated that following a bid for a tender, his company entered into a contract with the 2nd respondent on 26th August, 2014 in respect to the subject toilet and which contract was amended by way of an addendum dated 9th February, 2016 to run for five (5) years as opposed to three (3) years.

23. The appellant stated that the 1st respondent has on several occasions tried to evict him from the property relating to the subject toilet pursuant to the consent order issued on 27th June, 2019 despite the existence of a valid contract between the appellant and the 2nd respondent.

24. The appellant stated that he is therefore apprehensive that unless the orders in place are stayed or set aside, he stands to be evicted and yet he has a commercial interest in the subject toilet, having built them.

25. In reply, Lawrence Mwangi Mukuru who swore the replying affidavit on 1st October, 2019 on behalf of the 2nd respondent stated that upon being issued with an award letter dated 26th October, 2018, the appellant thereafter entered into a contract with the 2nd respondent on 5th October, 2018 for the management of the subject toilet for a period of three (3) years, but that the management was later awarded to the 1st respondent and hence the appellant has no claim whatsoever on the subject toilet.

26. The deponent also stated that the lease agreement dated 26th August, 2014 and amended to read 26th August, 2016 entered into between the appellant and the 2nd respondent was for a period of five (5) years which period lapsed on 26th August, 2019.

27. The deponent further stated that the consent order in force is valid and intended to protect the interest of the 1st respondent.

28. In her decision, the learned trial magistrate reasoned that the alleged termination of the contract between the appellant and the 2nd respondent is not an issue to be dealt with in that particular suit and therefore concluded that the appellant did not have a legal interest in the subject toilet. The learned trial magistrate added that any issue relating to the lease in respect to the subject toilet can only be addressed in a different suit.

29. For the foregoing reasons, the learned trial magistrate declined to set aside or vary the consent order and therefore dismissed the appellant’s application with costs.

30. Concerning the subject of interested party, the term ‘is defined under Rule 2of theConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and echoed by the court in the case of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLRas follows:

“interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”

31. Similarly, the court in the case of Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR defined an interested party as:

“A party who has a recognizable stake (and therefore standing) in the matter.”

32. The guiding principles encompassing the enjoinment of an interested party to a suit were articulated by the Supreme Court in the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae) [2017]eKLR with reference to Francis Karioki Muruatetu & Another v Republic & 5 others Petition 15as consolidated with 16 of 2013 [2016] eKLRthus:

“(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.

33. The above renditions are reflected in the cases of Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR and Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLRcited in the grounds of appeal, on who can be considered to be an interested party.

34. From my re-examination of the material availed before the learned trial magistrate, I am satisfied that the appellant brought credible evidence to demonstrate an identifiable or personal stake in the suit, having shown that he had a legal interest in the subject toilet by virtue of the contract entered into between himself and the 2nd respondent in respect to the subject toilet at all material times.

35. Going by the material which was tendered before the trial court, I also note that at the time of contracting between the respondents herein and of filing the suit, it is apparent that the contract between the appellant and the 2nd respondent was still subsisting, which supports his assertion as to his commercial interest in the property.

36. The subject of whether or not the contract had been terminated by the time the 1st respondent was brought on board can only be properly considered and ventilated at a later stage in the suit. For now, I am satisfied that the appellant demonstrated that he has a personal stake in the matter and the learned trial magistrate ought to have found as such.

37. On the principle of prejudice and the case to be made at the trial of the suit, I am equally satisfied upon re-examining the material and evidence tendered that by virtue of his interest in the subject toilet, the appellant has reasonably shown the manner in which he stands to be prejudiced if he is not enjoined in the suit as an interested party.

38. In the circumstances, I am of the view that the learned trial magistrate did not arrive at a proper finding concerning whether the appellant had satisfied the requirements for enjoinment in the suit as an interested party.

39. This brings me to the subject of the consent order which was recorded between the respondents herein and filed on 7th June, 2019 subsequently being adopted as an order of the court on 27th June, 2019.

40. Upon re-examining the material on record and taking into account the assertions made by the appellant, I am of the view that this is an issue which can only be adequately ventilated at the trial. As it stands and in the absence of any credible evidence, I would be hesitant to interfere with the ruling of the learned trial magistrate by setting aside or varying of the consent order in place at this stage. I think it would be more prudent to maintain the status quo until the suit is concluded.

41. Further to the foregoing, I am of the view that while it is apparent that the appellant has demonstrated that he stands to be prejudiced, I am not convinced that such prejudice is of such a nature that it cannot be adequately compensated by an award of damages if need be.

42. On the subject of whether the learned trial magistrate addressed issues which ought to be left for the trial, upon my study of the impugned ruling, I observed that the learned trial magistrate found that the appellant had been evicted and therefore had no legal interest in the subject toilet.

43. In my view, the above are issues which are in dispute and can only be properly tested and articulated at the hearing. Consequently, the learned trial magistrate fell into error by making conclusive findings on the said issues at the preliminary stages of the suit.

44. Upon taking into account all the foregoing factors hereinabove, I am convinced that it would be a proper exercise of my discretion to interfere with the impugned ruling and to grant the appellant the opportunity of participating at the suit as an interested party. It is also apparent that in the interest of justice and the circumstances, the suit would require an expedient hearing on priority basis.

45. In the end, the appeal partially succeeds. It is allowed thus giving rise to issuance of the following orders:

i. The ruling delivered on 29th May, 2020 is hereby set aside and is substituted with an order allowing the Motion dated 9th August, 2019. The appellant is granted leave to be enjoined in the suit as an interested party, with no order on costs.

ii. The suit to be herd by another magistrate of competent jurisdiction other than the Honourable L. L. Gicheha (Mrs.) (Chief Magistrate) on priority basis.

iii. The appellant/interested party is granted leave of 15 days from this day to respond to the 1st respondent’s/ plaintiff’s pleadings if need be.

iv.In the circumstances of this appeal, a fair order on costs is to order each party to bear its own costs of the appeal.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 10th day of March, 2022.

………….…………….

J. K. SERGON

JUDGE

In the presence of:

………………………………... for the Appellant

………………………………... for the 1st Respondent

………………………………... for the 2nd Respondent