[2024] KEHC 8645 (KLR)

Gitau v Central Bank of Kenya & 3 others; Shah & 41 others (Proposed Plaintiffs); Cargo Distributors Limited & 26 others (Proposed Interested Parties) (Commercial Case E154 of 2022) [2024] KEHC 8645 (KLR) (Commercial and Tax) (11 July 2024) (Ruling)

Neutral citation: [2024] KEHC 8645 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Commercial Case E154 of 2022

MN Mwangi, J

July 11, 2024

Between

William Kabogo Gitau

Plaintiff

and

The Central Bank Of Kenya

1st Defendant

Rose Detho

2nd Defendant

Kenya Deposit Insurance Corporation

3rd Defendant

Charterhouse Bank Limited

4th Defendant

and

Ankoor Shah

Proposed Plaintiff

World Shelter Limited

Proposed Plaintiff

Gunter & Goldberg Limited

Proposed Plaintiff

Pepe Limited

Proposed Plaintiff

Mehraz Esani

Proposed Plaintiff

Leila Ehsani

Proposed Plaintiff

Magnolia Hills Limited

Proposed Plaintiff

Farzam Riaz

Proposed Plaintiff

Elika Mahony

Proposed Plaintiff

Jaleh Ehsani Farokry

Proposed Plaintiff

Continental Board of Counsel

Proposed Plaintiff

Narmadaben M Shah

Proposed Plaintiff

Manishkumar Ramniklal Shah, Manojkumar Ramniklal Shah and Sanjaykumar Ramniklal Shah (Suing as administrator of the Estate of Pushpa Ramniklal Shah)

Proposed Plaintiff

Faranak Ehsani

Proposed Plaintiff

Rajeshwar Harisans Bai

Proposed Plaintiff

Dr Sunil Dhali

Proposed Plaintiff

Patel Ashit Kumar

Proposed Plaintiff

Patel Nishit Kumar

Proposed Plaintiff

Lifestyle Renovators Limited

Proposed Plaintiff

Dalbit Petroleum Limited

Proposed Plaintiff

Global Brands Kenya Limited

Proposed Plaintiff

Anandi Vipin Shah

Proposed Plaintiff

Hinal Ashok Shah

Proposed Plaintiff

Sawan Rajendra Shah

Proposed Plaintiff

Nikhil Vipin Shah

Proposed Plaintiff

Nilima Rajendra Shah

Proposed Plaintiff

Wow Beverages Limited

Proposed Plaintiff

Veeraj Mahesh Rughani

Proposed Plaintiff

Mahir Mahesh Rughani

Proposed Plaintiff

Ravi Mahesh Rughani

Proposed Plaintiff

Mr & Mrs Mahesh Rughani

Proposed Plaintiff

David Johnson (Suing through Samuel Mureithi Murioki under a special Power of Attorney)

Proposed Plaintiff

Crucial Properties Limited

Proposed Plaintiff

Mayfair Insurance Limited

Proposed Plaintiff

Fones Direct Limited

Proposed Plaintiff

Phonelink Limited

Proposed Plaintiff

D Shah & Vithlani

Proposed Plaintiff

Odesys Enterprises

Proposed Plaintiff

Liwei Yin

Proposed Plaintiff

Mohamed Farhan Mohamed Firosdin

Proposed Plaintiff

Wild Dreams Holidays Limited

Proposed Plaintiff

Baha’l Publishing Agency Of Kenya

Proposed Plaintiff

and

Cargo Distributors Limited

Proposed Interested Party

Subhash Chandra Gudka

Proposed Interested Party

Crescent Construction Limited

Proposed Interested Party

Khatib Ashraf

Proposed Interested Party

Cabro Works EA Limited

Proposed Interested Party

Deftech Limited

Proposed Interested Party

Aniket Property & Investments Limited

Proposed Interested Party

V-Market Choice (K) Limited

Proposed Interested Party

Aniket Dilpun Shah

Proposed Interested Party

Hidden Treasures Book Wholesellers Limited

Proposed Interested Party

Books First Limited

Proposed Interested Party

Maina & Maina Advocates

Proposed Interested Party

Impulse Developers Limited

Proposed Interested Party

Esther Njeri Gitau

Proposed Interested Party

Minesh M Shah

Proposed Interested Party

Rajul M Shah

Proposed Interested Party

Neima M Shah

Proposed Interested Party

Trilok Varia Bhagwanji

Proposed Interested Party

Teevee Insurance Company Limited

Proposed Interested Party

Hirji Khimji Bhimji

Proposed Interested Party

Seyani Brothers & Company Limited

Proposed Interested Party

Chunilal Khimji Shah

Proposed Interested Party

Shah Pushpaben Chunilal Khimji

Proposed Interested Party

Bhagchan Raishi Shah Nisha

Proposed Interested Party

Shah Sobhagchand Raishi Mepa

Proposed Interested Party

Fresh ‘N’juici Limited

Proposed Interested Party

Brand Imports Limited

Proposed Interested Party

Ruling

1. This ruling is in respect to various applications for joinder filed by proposed plaintiffs and intended interested parties pursuant to a ruling delivered by Lady Justice Chepkwony on 24th February, 2023. The said applications are listed hereunder –1. Notice of Motion dated 15th June, 2023 by Impulse Developers Limited & Esther Njeri Gitau, supported by an affidavit sworn on the same day by Esther Njeri Gitau, the 2nd proposed interested party. The application is brought on grounds that Impulse Developers Limited & Esther Njeri Gitau are depositors with the 4th defendant, thus they have an identifiable stake in this suit;2. Notice of Motion dated 15th June, 2023 by Cargo Distributors Limited, supported by an affidavit sworn on the same day by Esther Njeri Gitau, a Director of the proposed interested party. The application is brought on grounds that Cargo Distributors Limited is a depositor with the 4th defendant, thus it has an identifiable stake in this suit;3. Notice of Motion dated 15th June, 2023 by Rajeshwar Harisans Bai & Dr. Sunil Dhall, supported by an affidavit sworn on the same day by Rajeshwar Harisans Bai, an intended plaintiff. The application is premised on the fact that Rajeshwar Harisans Bai & Dr. Sunil Dhall are account holders with the 4th defendant, thus they should be allowed to participate in this suit as they have an identifiable stake in the 4th defendant’s assets;4. Chamber Summons dated 16th June, 2023 by Faranak Ehsani, supported by an affidavit sworn on the same day by Faranak Ehsani, a proposed plaintiff. The application is premised on the fact that the applicant is an account holder with the 4th defendant, thus he has a direct interest in this suit and that the subject matter of this suit is similar to his claim, hence he should be joined to this suit;5. Chamber Summons dated 19th June, 2023 by Patel Ashit Kumar, supported by an affidavit sworn on the same day by the said applicant, a proposed plaintiff. The application is brought on grounds that Patel Ashit Kumar is a depositor of the 4th defendant, thus he has an identifiable stake in this suit;6. Chamber Summons dated 19th June, 2023 by Patel Nishit Kumar, supported by an affidavit sworn on the same day by the said applicant, a proposed plaintiff. The application is brought on grounds that Patel Nishit Kumar is a depositor of the 4th defendant, thus he shares similar interests and claim with the existing plaintiff, and the outcome of this suit will have a direct impact on his financial interests;7. Notice of Motion dated 19th June, 2023 by Liwei Yin, Mohamed Farhan Firozdin, & Wild Dreams Holiday Limited, supported by an affidavit sworn on the same day by Liwei Yin, one of the proposed plaintiffs. The application is brought on grounds that Liwei Yin, Mohamed Farhan Firozdin, & Wild Dreams Holiday Limited are depositors with the 4th defendant, thus they have an identifiable stake in this suit;8. Notice of Motion dated 19th June, 2023 by Trilok Varia Bhagwanji & Trevee Insurance Company Limited, supported by an affidavit sworn on the same day by Trilok Varia Bhagwanji, the 4th intended interested party. The application is brought on grounds that Trilok Varia Bhagwanji & Trevee Insurance Company Limited operate and hold accounts with the 4th defendant, hence their presence shall assist this Court to adjudicate all the issues raised to finality;9. Chamber Summons dated 20th June 2023 by Subhash Chandra Gudka, supported by an affidavit sworn on the same day by the applicant. The application is premised on grounds that Subhash Chandra Gudka is a depositor of the 4th defendant, thus he has a personal interest in the outcome of this matter that he ought to protect by being joined to this suit;10. Notice of Motion dated 20th June, 2023 by Ankoor Shah. I did not trace the application on the CTS but the 1st and 2nd defendants referred to the said application in their replying affidavit.11. Notice of Motion dated 20th June, 2023 by Crescent Construction Company Limited, Khatib Ashraf, Cabro Works E.A. Limited & Deftech Limited, supported by an affidavit sworn on the same day by Khatib Ashraf, the 2nd intended interested party. The application is premised on grounds that Crescent Construction Company Limited, Khatib Ashraf, Cabro Works E.A. Limited, & Deftech Limited are customers and/or depositors of the 4th defendant, thus they are entitled to refunds and/or payment of their funds with interest from the defendants. For this reason, they have an identifiable stake and interest in this suit;12. Notice of Motion dated 21st June, 2023 by Narmadaben M. Shah, supported by an affidavit sworn on the same day by the applicant, a proposed plaintiff. The application is premised on the fact that Narmadaben M. Shah is a depositor with the 4th defendant, thus he has a direct interest in this matter whose subject matter is similar to his claim. For the said reason, his active participation in this suit will enable this Court to effectively and completely adjudicate on and settle all the questions involved in this suit;13. Notice of Motion dated 21st June, 2023 by Pepe Limited, supported by an affidavit sworn on the same day by David Githui, the proposed plaintiff’s General Manager. The application is premised on grounds that Pepe Limited is an account holder with the 4th defendant, hence it should be joined to this suit as a co-plaintiff to avoid multiplicity of suits and for the common questions of law and fact arising from this suit to be resolved;14. Notice of Motion dated 21st June, 2023 by the Estate of the late Pushpa Ramniklal Shah, supported by an affidavit sworn on the same day by Manishkumar Ramniklal Shah, one of the Administrators of the Estate of the late Pushpa Ramniklal Shah. The application is premised on the ground that the applicant is an account holder with the 4th defendant, thus the applicant’s active participation in these proceedings will help this Court in reaching a just and fair decision since the applicant has a stake in the 4th defendant’s assets;15. Notice of Motion dated 22nd June, 2023 by Mehraz Ehsani, Hamed Ehsani, Magnolia Hills Limited, Farzam Riaz, Elika Mahony, Jaleh Ehsani Farokry, Continental Board of Counsel and Leila Ehsani, supported by an affidavit sworn on the same day by Mehraz Ehsani, the 1st intended plaintiff. The application is premised on the fact that the applicants held accounts with the 4th defendant, thus allowing this application will avoid a multiplicity of suits pertaining to similar claims against the same parties;16. Notice of Motion dated 10th July, 2023 by World Shelter Limited & Gunter & Goldberg Limited, supported by an affidavit sworn on the same day by Hon. John Harun Mwau, an official of the proposed plaintiffs. The applicants claim that they are account holders with the 4th defendant, and their claim is similar to that of the plaintiff in this suit. They also state that their claims arise out of the same transaction, and the reliefs sought flow from the same transaction thus necessitating this application;17. Notice of Motion dated 25th July, 2023 by Anandi Vipin Shah, Hinal Ashok Shah, Sawan Rajendra Shah, Nikhil Vipin Shah, & Nilma Rajendra Shah, supported by an affidavit sworn on the same day by Hinal Ashok an intended plaintiff. The applicants claim that they are former account holders with the 4th defendant, thus they have a direct interest in the matter and ought to be joined to this suit as plaintiffs;18. Notice of Motion dated 25th July, 2023 by Chunilal Khimji Shah, Shah Pushpaben Chunilal Khimji, Bhangchand Raishi Shah Nisha, & Shah Sobhagchand Raishi Mepa, supported by an affidavit sworn on the same day by Chunilal Khimji Shah, an intended interested party. The applicants claim that they are depositors with the 4th defendant, thus their involvement in these proceedings will enable this Court to effectively and completely adjudicate upon and settle all the questions involved in this suit;19. Chamber Summons dated 26th July, 2023 by Baha’i Publishing Agency Kenya, supported by an affidavit sworn on the same day by Lucy Imison, the Trust Secretary of the proposed plaintiff. The applicant claims that it is a former account holder of the 4th defendant, hence it has a direct interest in this matter, whose subject matter is similar to its claim, and for that reason, it should be joined to this suit;20. Notice of Motion dated 26th July, 2023 by Minesh M. Shah, Rajul M. Shah, Neina M. Shah, supported by an affidavit sworn on the same day by Minesh M. Shah, an intended interested party. The application is premised on the fact that Minesh M. Shah, Rajul M. Shah, and Neina M. Shah are depositors with the 4th defendant holding fixed deposit and savings accounts, hence they have a direct interest in this matter and ought to be joined in this suit as interested parties;21. Notice of Motion dated 26th July, 2023 by Dalbit Petroleum Limited supported by an affidavit sworn on 1st August, 2023 by Ruth Muhia, the intended plaintiff’s Finance Manager. The application is anchored on the ground that the applicant is a depositor of the 4th defendant, thus has a stake in these proceedings whose outcome is likely to be for the benefit of protecting its deposits;22. Chamber Summons dated 31st July, 2023 by Wow Beverages Limited, supported by an affidavit sworn on the same day by Robert Thinji Muriithi, a Director of the intended plaintiff company. The application is premised on the fact that Wow Beverages Limited previously known as Wines of the world Limited is a depositor of the 4th defendant, thus has a stake in these proceedings;23. Chamber Summons dated 31st July, 2023 by Crucial Properties Limited, supported by an affidavit sworn on the same day by Nyawira Kariuki, the intended plaintiff’s Director. The application is anchored on the ground that the applicant is a depositor of the 4th defendant, thus it has a stake in these proceedings whose outcome is likely to be for the benefit of protecting its deposits;24. Notice of Motion dated 2nd August, 2023 by Hidden Treasures Book Wholesalers Limited & Books First Limited, supported by an affidavit sworn by Kareem Hasham, a Director of the proposed plaintiffs. The applicants claim that they hold accounts with the 4th defendant. That as a result, their claim is similar to the plaintiff’s claim in this suit, thus they should be joined to this suit;25. Notice of Motion dated 3rd August, 2023 by David Johnson (Suing through Samuel Mureithi Murioki under Special Power of Attorney), supported by an affidavit sworn on 10th July, 2023 by Samuel Mureithi Murioki the donee of a power of attorney by David Johnson. The applicant’s application is premised on the fact that he is a depositor of the 4th defendant;26. Notice of Motion dated 11th August, 2023 by Global Brands Kenya Limited, supported by an affidavit sworn on the same day by Dilpun Goviindi Shah, a Director of the intended plaintiff. The applicant claims that it is a customer of the 4th defendant, thus its active participation in these proceedings will assist this Court in reaching a just and fair determination as they have a stake in the 4th defendant’s assets;27. Notice of Motion dated 14th August, 2023 by Fones Direct Limited, Phonelink Limited, D. Shah & Vithlani, and Odesys Enterprises, supported by an affidavit sworn on the same day by Rupal Batuk Vithlani & Dilpun Goviindi Shah, the intended plaintiffs & Directors of the intended plaintiffs. The applications are based on the claim that the applicants are depositors with the 4th defendant, which means that they have interest that will be negatively affected in the event that they are not joined to this suit;28. Notice of Motion dated 14th August, 2023 by Fresh ‘N’ Juici Limited & Brand Imports Limited, supported by an affidavit sworn on the same day by Dilpun Govindji Shah, a Director of the intended interested parties. The applicants claim that they are customers of the 4th defendant, thus their active participation in these proceedings will assist this Court in reaching a just and fair determination as they have a stake in the 4th defendant’s assets;29. Notice of Motion dated 22nd August, 2023 by Aniket Dilpun Shah, V-Market Choice, and Aniket Property & Investment Limited, supported by an affidavit sworn on the same day by Aniket Dilpun Shah, an intended interested party & Dilpun Govindji Shah the Director of Aniket Property & Investment Limited. The application is premised on the claim that Aniket Dilpun Shah, V-Market Choice, and Aniket Property & Investment Limited held accounts with the 4th defendant, hence their active participation in these proceedings will assist this Court in reaching a just and fair determination as they have a stake in the 4th defendant’s assets;30. Notice of Motion dated 23rd August, 2023 by Mr. & Mrs. Mahesh Rhugani, supported by an affidavit sworn on the same day by Mr. & Mrs. Mahesh Rhugani, proposed plaintiffs. The application is anchored on the claim that Mr. & Mrs. Mahesh Rhugani are depositors with the 4th defendant, thus they have a direct interest in this matter, whose subject matter is similar to its claim, and for that reason, they should be joined to this suit;31. Notice of Motion dated 23rd August, 2023 by Mahir Mahesh Rhugani, supported by an affidavit sworn on the same day Mahir Mahesh Rhugani, a proposed plaintiff. The applicant claims that he is a depositor with the 4th defendant, thus he has a direct interest in this matter whose subject matter is similar to his claim, and for that reason, he should be joined to this suit;32. Notice of Motion dated 23rd August, 2023 by Ravi Mahesh Rhugani, supported by an affidavit sworn on the same day by the applicant, a proposed plaintiff. The applicant claims that she is a depositor with the 4th defendant, thus she has a direct interest in this matter whose subject matter is similar to her claim, and for that reason, she should be joined to this suit;33. Notice of Motion dated 23rd August, 2023 by Veeraj Mahesh Rhugani supported by an affidavit sworn on the same day by the applicant, a proposed plaintiff. The applicant claims to be a depositor of the 4th defendant, thus he has a direct interest in this matter whose subject matter is similar to its claim. For that reason, he should be joined to this suit;34. Notice of Motion dated 6th September, 2023 by Maina and Maina Advocates. I did not find the said application on the CTS but the 1st and 2nd respondents referred to their application in their replying affidavit. The said applicant filed written submissions in support of their application;35. Notice of Motion dated 6th September, 2023 by Hirji Khimji Bhimji seyani, supported by an affidavit sworn on the same day by the applicant, an intended interested party herein. The applicant claims that he is an account holder with the 4th defendant, thus he would be adversely affected by the prayers sought in this suit. In addition, that he has direct personal interest in the outcome of this suit;36. Notice of Motion dated 6th September, 2023 by Seyani Brothers & Company Limited, supported by an affidavit sworn on the same day by Hirji Khimji Bhimji Seyani, a Director of the intended interested party. The applicant claims that it holds an account with the 4th defendant, it has a great interest in this matter, thus it should be joined to these proceedings;37. Notice of Motion dated 21st September, 2023 by May Fair Insurance Limited, supported by an affidavit sworn on the same day by Joshua Chiira, the intended plaintiff’s Managing Director. The applicant claims that it is an account holder with the 4th defendant, thus if joined to this suit it will facilitate a fast, expeditious and fair determination of all matters arising in this suit;38. Notice of Motion dated 25th September, 2023 by Lifestyle Renovators Limited, supported by an affidavit sworn by Elijah Okello Omullo, one of the proposed plaintiff’s Directors. The application is premised on the claim that Lifestyle Renovators Limited is a depositor with the 4th defendant, which means that it has a direct interest in this matter, whose subject matter is similar to its claim. For the said reason, it should be joined to this suit; and39. Notice of Motion dated 2nd October, 2023 by Frashia Wangui Ngatia, & Lucy Wangari Mwangi, supported by an affidavit sworn on the same day by Lucy Wangari Mwangi, one of the intended plaintiffs. The applicants claim that they are account holders with the 4th defendant, and they are seeking similar reliefs as those sought in this suit and arising from similar facts. For the said reason, they should be joined to this suit.

2. In opposition to the said applications, the 1st and 2nd defendants filed a replying affidavit sworn on 31st January, 2024 by Kennedy Kaunda Abuga, the 1st defendant’s General Counsel. The 3rd & 4th defendants filed a replying affidavit sworn on 29th January, 2024 by David Irungu, the General Manager Resolutions at the 3rd defendant company.

3. The 1st and 2nd defendants’ position is that the ruling of Lady Justice Chepkwony delivered on 24th February, 2023 only granted liberty to depositors of the 4th defendant who are willing to be joined as plaintiffs to these proceedings to apply for such joinder, therefore all applications which seek joinder as an interested party are improperly before this Court, hence they should be struck out. They averred that the some of the applicants have not demonstrated that they are account holders with the 4th defendant, thus their claims that they are depositors with the 4th defendant cannot be substantiated.

4. It was stated by the 1st & 2nd defendants that in as much as the applicants seek joinder as a means of recovering their deposits held with the 4th defendant, some of their claims are time barred thus it serves no useful purpose for the said applicants to be joined to this suit. The 1st & 2nd defendants further stated that some of the applicants have opted to file plaints and/or statements of claim that are incompatible with these proceedings, thus they should not be joined to this suit on that account.

5. The 1st & 2nd defendants referred to the application dated 3rd August, 2023 filed by David Johnson (Suing through Samuel Mureithi Murioki under Special Power of Attorney), and contended that the Power of Attorney relied on by the parties therein is not registered as required by law, thus the said application is defective.

6. They also referred to the affidavit in support of the application dated 25th July 2023 seeking joinder of Anandi Vipin Shah, Hinal Ashok Shah, Sawan Rajendra Shah, Nikhil Vipin Shah, & Nilma Rajendra Shah and averred that it has been sworn by all parties but executed by only one of them, thus it is defective.

7. The 3rd and 4th defendants in opposition to the said applications averred that the applicants herein seek to join this suit so as to pursue a claim for refund of their deposits held at the 4th defendant together with interest and damages for economic losses, which claim is different from the plaintiff’s in this suit, as the plaintiff herein seeks a myriad of prayers including but not limited to an order challenging the 1st defendant’s decision to place the 4th defendant under liquidation.

8. The 3rd and 4th defendants further averred that the applicants herein ought to exhaust the avenue available to them as provided for under Sections 28(1) & 33 of the Kenya Deposit Insurance Act by lodging a claim for payment of their deposits by the 3rd defendant first. They contended that the applicants herein are just but a fraction of all the 4th defendant’s depositors, thus if the Court were to grant the orders for refund sought, it would amount to preferential treatment for a portion of the depositors, and will also amount to this Court directing the 3rd defendant on how to perform its statutory functions.

9. The 3rd & 4th defendants asserted that in view of the fact that some of the proposed plaintiffs have filed their independent plaints, if the applications herein were to be allowed, the defendants will be required to file separate statements of defence for each plaint, leading to practical problems of handling the existing cause of action together with the numerous ones filed by the applicants herein.

10. The 3rd and 4th defendants stated that they do not object to the applicants herein being joined as interested parties and/or plaintiffs because if they are joined to these proceedings they will have an opportunity to follow the proceedings in relation to the plaintiff’s claim challenging the placing of the 4th defendant under liquidation. The 3rd & 4th defendants stated that they oppose the applications made by the following applicants on grounds that they are not the 4th defendant’s depositors, and they have not tendered any evidence confirming the same–i.Forte Hardware and Accessories Limited;ii.Junda Kanabar & Harshes Kanabar;iii.Nadeem Sadiq Mohmood Sadiq;iv.Tarum Kumar Satp Lumb;v.Neera Bahlvi.Sureshchandra P. Shah; andvii.Sobhana Sureshchandra.

11. The instant application was canvassed by way of written submissions. I have considered the said submissions. I will not rehash the same but I will refer to them in my determination.

Analysis And Determination. 12. I have considered the applications filed herein, the grounds on the face of the Motion as well as the affidavits filed in support thereof. I have also considered the replying and further affidavits by the defendants together with the written submissions by Counsel for the parties. The issue that arises for determination is whether the applicants herein should be joined to these proceedings –

Whether the applicants herein should be joined to these proceedings. 13. Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 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.”

14. The tests for determining an application for joinder of parties were restated by the Court in the case of Kingori v Chege & 3 others [2002] 2 KLR 243, where Nambuye, J (as she then was) outlined the guiding principles to be considered when an intending party is to be joined to proceedings are -i.He must be a necessary party;ii.He must be a proper party;iii.In the case of the defendant there must be a relief flowing from that defendant to the plaintiff;iv.The ultimate order or decree cannot be enforced without his presence in the matter; andv.His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.

15. In Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR, the Court when dealing with a similar application stated as follows -“Again, the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules 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, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined… from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”

16. It is worth noting that the present applications were filed as a result of a ruling delivered by Lady Justice Chepkwony on 24th February, 2023. In the said ruling, the Court considered whether allowing the application the subject of the said ruling would be tantamount to usurping the powers of the 3rd defendant and held that taking into account that this suit seeks to enforce depositors’ rights to be reinstituted of their deposits, it is inevitable that at some point, the determination of this suit will bear some financial obligations, thus any depositor willing to be joined as a plaintiff in this suit was at liberty to apply to the Court to be made a party. The Judge then directed the plaintiff to advertise the suit so as to notify willing depositors to be joined to the suit.

17. In light of the foregoing, it is my finding that in order for the applicants to be joined to this suit, all that they have to do is to demonstrate is that they were the 4th defendant’s depositors as at 23rd June, 2003 when the 1st & 2nd defendants issued Gazette Notices No. 4935 & 4936. It is worth noting that the 3rd and 4th defendants in their replying affidavit to the applications herein annexed a list of verified and confirmed depositors of the 4th defendant. This Court finds that in view of the fact that the 4th defendant is the custodian of the list of its depositors, any person who wishes to be joined to these proceedings must be in the list provided by the 3rd & 4th defendants, and any person who is not part of the said list is required to demonstrate through evidence that they were indeed depositors of the 4th defendant as at 23rd June, 2003 when the 1st & 2nd defendants issued Gazette Notices No. 4935 & 4936.

18. The 3rd & 4th defendants at paragraph 18 of their replying affidavits stated that they have no objection to the applicants herein being joined to these proceedings. In paragraph 20 of the said affidavits, they however objected to the following being joined to these proceedings-i.Forte Hardware and Accessories Limited;ii.Junda Kanabar & Harshes Kanabar;iii.Nadeem Sadiq Mohmood Sadiq;iv.Tarum Kumar Satp Lumb;v.Neera Bahl;vi.Sureshchandra P. Shah; andvii.Sobhana Sureshchandra.

19. On perusal of the applications herein, the list of verified and confirmed depositors annexed to the 3rd & 4th defendants replying affidavit as well as the list of persons and companies whom the 3rd & 4th defendants contend were not the 4th defendant’s depositors as at the time the 4th defendant was placed under liquidation, I am satisfied that all the applicants herein were the 4th defendants depositors as at 23rd June 2003 when the 1st & 2nd defendants issued Gazette Notices No. 4935 & 4936 placing the 4th defendant under liquidation.

20. The 1st & 2nd defendants contend that all the applicants who intend to join this suit as interested parties should not be allowed to join in the said capacity, as Lady Justice Chepkwony’s ruling granted liberty only to parties wishing to join the suit as plaintiffs to do so. I am however of the considered view that nothing bars this Court from considering the applications filed by the interested parties to be joined to this suit, as this is a Court of competent jurisdiction and of equal status to Judge Chepkwony’s Court. I therefore have the jurisdiction to consider the said applications on merits, which I have.

21. The defendants averred that some of the applicants should not be joined to this suit since their claims are time barred. While this Court appreciates that some of the applicant’s claims may be time barred, this is not an issue to be determined at this juncture, rather, it is one that will be determined on merits at the hearing and determination of this suit after the Court has considered and analyzed the evidence adduced by the parties, or at an earlier stage, upon application by the defendants. On the issue of whether the applicants’ claims are different from the cause of action in this suit, this Court finds that this is not an issue for consideration at this stage.

22. Having considered the applications filed herein, I am satisfied that the said applicants have met the threshold of being joined as either plaintiffs or interested parties, as per the prayers sought, as they have identifiable stakes in these proceedings.

23. In the premise, this Court finds that the applications herein are merited. As a result, they are hereby allowed in the following terms –i.An order is hereby issued directing that the applicants herein be joined to this suit as plaintiffs or interested parties, as per their respective prayers; andii.Each party shall bear its own costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 11TH DAY OF JULY, 2024. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Kassimu h/b for Mr. Ouma for the plaintiffMs Arora h/b for 1st & 2nd defendantsMr. Muchiri for the 3rd and 4th defendantsMs Wairanga for Ankoor Shah/Intended plaintiffMs Gitonga for World Shelter Ltd/Intended plaintiffMs Bundi h/b Mr. Gitonga for Gunta & Goldberg Ltd/Intended plaintiffNo appearance for Pepe LtdMs Mary Muigai for Mehraz EsaniLeila Ehsani - proposed plaintiffMagnolia Hills Ltd. - proposed plaintiffFarzam Riaz - proposed plaintiffElika Mahony - proposed plaintiffJaleh Ehsani Farokry - proposed plaintiffContinental Board of Counsel/proposed plaintiffsMs Odhiambo for Narmadaben M. Shah/proposed plaintiffMr. Momanyi h/b for Ms Nyabuto for ManishkumarRamniklal Shah, Mangkumar Ramniklal and Sanjaykumar Raminklal Shahproposed plaintiffsN/A for Faranak EhsaniN/A Rajeshwar Harisans BaiN/A for Dr. Sunil AliMr. Orengo h/b for Mr. Ng’ang’a for Patel Nashit Kumar & Patel HasherKimar/ proposed plaintiffMs Achieng for Lifestyle Renovator/proposed plaintiffMr. Walela h/b for Mr. Makau for Dalbit Petroleum Ltd/ intended 65th plaintiffN/A for Global Brands Kenya LtdMs Shabana Osman for Anandi Vipin Shah, Hinal Shok Shah, Sawan RajendraShah, Nikhil Vipin Shah, Nilima Rajendra Shah/proposed plaintiffsMr. Lubeto for Now Beverages/ proposed plaintiffMs Muleta for Veeraj Mahesh Rughani, Mahir Mahesh Rughani, Rari MaheshiRughani, Mr & Mrs Mahesh Ruhghani/proposed plaintiffsN/A for David JohnsonMr. Lubeto h/b Mr. James Mbugua for Crucial Properties/intended plaintiffN/A for Mayfair Insurance Ltd/proposed plaintiffMr. Yusuf for Fones/Direct Ltd, Phonelink Ltd & D Shah &Vithlani/proposedplaintiffMs Olao h/b for Mr. Abubakar for Odesys Enterprises Ltd/proposed plaintiffMr. Owino for Lumei Yin, Mohamed Farhan Mohamed Firosdin & WildDreams Holidays/proposed plaintiffN/A for Bahal Publishing Agency of Kenya/proposed plaintiffN/A for Cargo Distributors Co. Ltd/proposed interested partyN/A for Subhash Chandra Gudka/proposed interested partyMr. Ashford Mugwaku for Crescent Construction Co. Ltd, Khatib Ashraf,Cabro Works E.A Ltd, Deftech Limited/proposed plaintiffsN/A for Aniket Propery & Investments Ltd/proposed interested partiesN/A for V. Market Choice (K) LtdN/A Aniket Dilpun Shah/proposed interested partyMs M. Nganga h/b Njoki Gachihi for Hidden Treasures & Books FirstLtd/proposed plaintiffsMs Munjougu for Maina & Maina Advocates for intended interested partyN/A for Impulse Developers Ltd/proposed interested partyN/A for the Esther Njeri Gitau/proposed interested partyN/A for Minesh M. Shah/proposed interested partyN/A for Rajul M. Shah/proposed interested partyN/A for Neima M. Shah/Proposed interested partyN/A for Trilok Varia Bhagwanji/proposed interested partyN/A for Teevee Insurance Company Limited/proposed interested partyN/A for Hirji Khimji Bhimji/proposed interested partyN/A for Seyani Brothers Company Ltd/proposed interested partyMs Gedion h/b for Mr. Kamunde for Chunilal Khimji Shah, Shah Pushpabenchunilal Khimji/ proposed interested partyBhagchan Raisha Shah/proposed interested partiesShah Sobhagchand, Raishi Mepa/proposed interested partyMs P. Gakii for Fresh ‘N’ Juici Limited/proposed interested partyBraid Imports Ltd/proposed interested partyMs B. Wokabi – Court Assistant.Page 14 of 14 NJOKI MWANGI, J.