[2022] KEHC 11394 (KLR)

Geotop Surveys Limited v Oldonyonyoike Group Ranch & another; Geoflex Consultants Limited (Intended Interested Party) (Civil Suit E004 of 2021) [2022] KEHC 11394 (KLR) (16 March 2022) (Ruling)

Neutral citation: [2022] KEHC 11394 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Suit E004 of 2021

SN Mutuku, J

March 16, 2022

Between

Geotop Surveys Limited

Plaintiff

and

Oldonyonyoike Group Ranch

1st Defendant

Mayiani Sankale T/A Tobiko Njoroge & Company Advocates

2nd Defendant

and

Geoflex Consultants Limited

Intended Interested Party

Ruling

1. This Ruling relates to the Chamber Summons Application dated 1st July, 2021 brought by the Intended Interested Party (the Applicant) pursuant to Order 1 Rule 10(2), Order 1 Rule 25 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act seeking the following orders:(i)That the Honourable court be pleased to order that Geoflex Consultants Limited be joined to these proceedings as an interested party.(ii)That the Honourable Court be pleased to grant any further orders or issue any other directions as may be necessary to enable Geoflex Consultants Limited to canvass its interests in the suit.(iii)That cost of this Application be in the cause.

2. The grounds in support of the Application are found on the face of it and in the Affidavit sworn by Charles Okoth Ameso Angira on 1st July, 2021.

3. It is the case for the Applicant that the Intended Interested Party competed in a rigorous public procurement exercise and was successfully awarded a contract to undertake planning, survey and registration works in LR. No. Kajiado/Oldonyonyokie/3; that an agreement to that effect was executed; that the Intended Interested Party mobilized resources and set up a survey camp at the location on April 13, 2021 and undertook various works as enumerated on paragraph 6 of the Supporting Affidavit and that the outcome of this case is likely to profoundly impact on the performance of the Contract and/or prejudice the contractual rights of the Intended Interested Party hence the need to be enjoined to these proceedings in order to enable the court to effectively and completely adjudicate upon and settle all the issues involved in this suit.

4. The Application is opposed by the Plaintiff. It filed a Replying Affidavit dated 2nd November, 2021 sworn by Cephas Kamande Mwaura.

5. It is the case for the Plaintiff that it instituted this suit to compel the Defendants to pay their professional fees arising from the performance of its obligations under a survey Agreement dated 13th October, 2011; that the said agreement entailed survey of all that land registered as Land Reference No. Kajiado/Oldonyonyoike/3 with a view to enabling the issuance of titles to individual members of the 1st Defendant; that the Plaintiff carried out the survey but did not receive professional fees despite a professional undertaking dated October 25, 2019 issued by the 2nd Defendant on behalf of the 1st Defendant to settle the pending fees.

6. It is deposed that the Plaintiff filed an application dated 26th January, 2021 where it sought orders to restrain the Defendants from engaging any other party to survey Land Reference No. Kajiado/Oldonyonyoike/3 after which a temporary injunction was issued on 12/4/2021; that no objection was raised with regards to the said order and therefore the appointment of the Intended Interested Party was made in contempt of lawful orders and was only backdated to 8/4/2021 to circumvent the said orders.

7. It is further deposed that the application by the Intended Interested Party was only meant to frustrate the main suit and is an abuse of the judicial process. That by nature of the suit being a claim for professional fees the Intended Interested Party has no stake and/or relevance to the instant proceedings. That non-joinder of the Intended Interested Party will not prejudice them.

8. The Intended Interested Party filed supplementary affidavit dated 7/12/2021 in which it is deposed that the Honourable court at the time of granting injunction orders was not aware of the ongoing procurement exercise involving them; that the orders were issued without the knowledge of the Intended Interested Party.

9. The Intended Interested Party further claims that the orders will continue to directly impact on the existence and performance of their contract with the 1st Defendant; that the pertinent question is why the Plaintiff would restrain the appointment of an alternative surveyor and on the other hand oppose inclusion into these proceedings a surveyor who had already been appointed and that shortly after their appointment they discovered that the persons alleged to be directors of the Plaintiff’s surveying company are not licensed surveyors.

10. Through the directions of this court, this application is being canvassed by way of written submissions. The defendants did not file their submissions as they are not opposed to this application.

11. The Intended Interested Party filed their submissions dated 1st January, 2022. They have reiterated the grounds in support of their application and have relied on the case of Departed Asians Custodian Board v Jaffer Brothers Ltd [1999] EA 55, quoted in Abdul Waheed Sheikih & 2Others v Commissioner of Lands & 3 others [2013] eKLR on the issue of joinder of parties. In that case the court stated that:“For a person to be joined on the grounds that that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person”

12. It was their argument that whereas the Plaintiff seeks payment for alleged services rendered to the 1st Defendant, they, using their expertise, have brought crucial information and evidence touching on the Plaintiff’s performance of the contract and have brought forward evidence questioning the Plaintiff’s qualifications and/or legal capacity to undertake survey works in the first place.

13. The Plaintiff filed their submissions dated 3/1/2022. They reiterated the contents of their supporting affidavit and submitted that the present application is brought under Order 1 Rule 10(2) of the civil procedure rules which permits the court to enjoin a person to a suit if the same is deemed necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit.

14. The Plaintiff has argued that the burden of proof as to what questions are involved in the suit, and how the Intended Interested Party will aid the court adjudicate upon and settle the said questions lies on the Intended Interested Party. The Plaintiff relies on Temple Point Resort Limited v Accredo AG & 5 others [2018] eKLR to support that argument. The Plaintiff has submitted that the Intended Interested Party has not demonstrated why they should be enjoined in this suit and therefore the entire application should be dismissed.

15. It was submitted that the suit before the court has only one issue for determination, that is whether the Plaintiff is entitled to the amounts claimed in the Plaint, which amounts arose from the contract dated October 13, 2011 which the Intended Interested Party was not a party to. Their argument was that the instant application should fail as the Intended Interested Party has not tendered any evidence that it has any legal interest in the subject matter of the suit and that being strangers to the matters under contention, the Intended Interested Party has not shown how it will aid the court in determining whether the Plaintiff is entitled to the amounts owed. They have also not demonstrated what prejudice they are likely to suffer in the event of non-joinder.

16. They argued further that the contract that the Intended Interested Party refers to, and dated 8/4/2021 was executed whilst the 1st Defendant was fully aware of the orders sought in the Plaintiff’s application dated 26/1/2021 and that when the matter came up in court on 25/6/2021 both the Chairman and Counsel for the 1st Defendant denied knowledge of the Intended Interested Party’s Contract, which Contract introduces new issues for determination, hence failing the test established by the case of Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR.

17. The Plaintiff further argued that the Intended Interested Party brought new issues through their supplementary affidavit which were not part of their motion and hence the Respondent has no way of rebutting and for this reason, they urged the court to disregard the supplementary affidavit dated 7/12/2021.

Analysis and Determination 18. Before me is a simple issue of joining the Intended Interested Party to these proceedings. The power of this court to join a party to the suit is given under Order 1 Rule 10 (2) of Civil Procedure Rules which provides that:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, 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”

19. In the case of Trusted Society of Human Rights Alliance v Mumo Matemu [2014] e KLR, the Supreme Court held that:“An interested party is one who has a stake in the proceedings, though he or she was not a party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or herself appears in the proceedings, and champions his or her cause.”

20. In the case of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae) [2017] the Supreme Court had this to say in respect to joinder of parties:“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.”

21. The issue that this court should concern itself with is whether the Intended Interested Party has met the threshold in granting the orders it is seeking. From its arguments as contained in the submissions, the Intended Interested Party is advancing a case that there is an existing contract between it and the 1st Defendant and that the orders granted by this court restraining the defendants from procuring and/or in any other way engaging any other person or entity to survey all that land known as LR No. Kajiado.Oldonyonyokie/3 pending hearing and determination of this suit legally affected the interests of the Intended Interested Party.

22. On the other hand the Plaintiff states that the suit before the court has only one issue for determination, that is whether the Plaintiff is entitled to the amounts claimed in the Plaint, which amounts arose from the contract dated 13/10/2011 which the Intended Interested Party was not a party to.

23. I have perused the Plaint and the Notice of Motion dated 26th January 2021 upon which the temporary injunction was based. It is clear to me from these pleadings that one of the contentious issues is the claim by the Plaintiff that the 1st Defendant violated and the terms of the Contract and the Professional Undertaking between it and the Plaintiff by advertising yet another Expression of Interest seeking qualified survey companies to undertake the same services for which the Plaintiff was contracted and performed without settling the amounts owing to the Plaintiff for work done and formally discharging it.

24. To my mind, this is the crux of the matter. While I appreciate that the claim against the defendants relate to unpaid fees for work done, that claim touches on the survey works on the property under reference which survey works has now been contracted to the Intended Interested Party.

25. It is my considered view that the Intended Interested Party demonstrated that he has a stake in these proceedings and that he will be affected by the decision of this court. It is my view that the Intended Interested Party is justified in feeling that its interest will not be well articulated unless it appears in these proceedings and champion its cause.

26. On the issue of the Intended Interested Party introducing new issues in its Supplementary Affidavit, it is true, as can be noted in that affidavit, that the Intended Interested Party has introduced new issues on Paragraph 10 of the Supplementary Affidavit sworn on 7th December 2021. For that reason, and as argued by the Plaintiff, I am persuaded that the additional and/or fresh issues brought out in that affidavit should not be allowed to stand because this would amount to ambush on the Plaintiff.

27. In Astute Africa Investments & Holding v Spire Bank Kenya Limited & another [2018] eKLR the court had this to say about introduction of new facts in the supplementary affidavit:“the question of the legality of the charge was not raised in the Plaint or in the Notice of Motion dated 9th November 2017. To raise it by way of the Supplementary Affidavit amounted to raising fresh or different issues at a very late stage. The general purpose of a Supplementary Affidavit is to allow the Plaintiff/Applicant to respond to the 1st Defendant’s Replying Affidavit or in the alternative to buttress and/or clarify the averments in the Supporting Affidavit. The Plaintiff/Applicant cannot use its Supplementary Affidavit as a means to introduce new facts or raise issues that were not at the core of the suit or the application. Raising this issue at such a late stage means that the 1st Defendant had no opportunity to respond to the same to their prejudice. For this reason, I am inclined to disregard this issue of the legality of the charge.”

28. In view of the above reasoning, I have not taken into consideration of the new issues raised in the Supplementary Affidavit. However, it is my considered view that the Intended Interested Party has persuaded me that it has met the threshold for grant of an order enjoining it as an interested party to these proceedings. To that end, Prayer 1 of the Chamber Summons dated 1st July 2021 is hereby allowed. Costs shall be in the cause.

29. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 16TH MARCH 2022. S. N. MUTUKUJUDGE