[2022] KEHC 16376 (KLR)

Gogo v Sairam Supermarket; Cooperative Bank K. Limited (Applicant) (Civil Appeal 142 of 2019) [2022] KEHC 16376 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16376 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 142 of 2019

RPV Wendoh, J

December 7, 2022

Between

Peter Omondi Gogo

Appellant

and

Sairam Supermarket

Respondent

and

Cooperative Bank K. Limited

Applicant

Ruling

1. The application for determination is dated November 17, 2021. The Co-operative Bank K Limited, the interested party/applicant (hereinafter the 'applicant'), is seeking the following orders:-a.Spent.b.The court be pleased to stay all the proceedings herein together with all the consequential orders/arising therefrom pending the hearing and determination of this application.c.That the court be pleased to grant leave to Co-operative Bank (K) Ltd to participate in these proceedings as an applicant in this appeal.d.That consequent to the grant of prayer (3) above, and to give effect to the said prayer the court be pleased to direct that this appeal proceed de novo.e.Costs of this application be in the cause.

2. The application is premised on the grounds found on the face of the application and the supporting affidavit of Billy Odhiambo Otieno, a Business Banker employed by the applicant at its Rongo Branch. He deponed that on March 4, 2015, one of the applicant’s customers by the name Benta Ojala Omollo approached the bank to finance the purchase of motor vehicle registration number xxxx Isuzu TFR 86 4*2 Single Black Cabin (suit motor vehicle); that upon considering the application, the applicant advanced her Kshs 2, 346, 390/= which was secured by a joint notation of the customer and the bank’s name on the logbook of the suit motor vehicle; that the interest payable for the said advanced amount was 15. 4% and the same was varied twice in November 2015 and September 2016; that the customer voluntarily agreed to be bound by the terms of the executed hire purchase agreement; that the applicant is a co-owner of the collateral motor vehicle and the applicant found out about the proceedings in Rongo SRMCC 260/2019, instituted by Sairam Supermarket Ltd and orders had been issued against Peter Omondi Gogo (appellant) and which Sairam Supermarket (the Respondent) sought to execute by attaching several properties inter alia the subject motor vehicle; that the applicant was not a party to the said suit and the parties therein are total strangers to the applicant and not owners of the suit motor vehicle; that the applicant found out about the matter in late 2020 and instructed counsel to follow up. He found out that a ruling had been delivered and the subject motor vehicle had been ordered attached and yet it belonged to the applicant and Benta Ojala; that if the applicant (financier) is not allowed to participate in this appeal as an interested party; then it will suffer prejudice. The applicant urged this court to allow the application as prayed.

3. The application is not opposed. The appellant’s Counsel Mr Omondi Gogo in the proceedings of March 28, 2020, stated that he has no objection with the applicant being a party to this appeal. The respondent was given an opportunity to file its response twice, but it never did.

4. The applicant filed its submissions dated April 22, 2022 on April 27, 2922 which I have carefully considered. The sole issue for determination is whether the applicant should be joined to these proceedings as an interested party.Order 1 Rule 10 (2) of the Civil Procedure Rules provides:-'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.'

5. The Court of Appeal in the case of JMK v MWM and MFS (2015) eKLR considered the scope of Order 1 Rule 10 and held as follows:-'That the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage'

6. A party, whether on its application or by the court suo moto, may be joined to the proceedings at any stage, even at the appellate stage, if its presence is necessary to determine the issues in controversy. In considering whether a party is necessary to the proceedings before it, the court has to determine first whether the issues in question directly affect the party applying to be joined or he has a beneficial interest in the outcome of the proceedings. The Court of Appeal in Pravin Bowry v John Ward and Another (2015) eKLR referred to the Ugandan Case of Deported Asians Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (SCU) where the principles to be considered for joinder in a suit were enunciated as follows:-'A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit because the party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter.For a person to be joined on the grounds 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 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.'

7. The Court of Appeal inCivicon Limited v Kivuwatt Limited and 2 Others (2015) eKLR interpreted that the powers given to the court under Rule 1 are discretionary in nature and must be exercised judiciously. The Court of Appeal held:-'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.'

8. To add its voice, the Supreme Court of Kenya in the case of Francis Karioki Muruatetu & another v Republic & 5 others (2016) eKLR stated:'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 applicant 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 present appeal is against the ruling and order of the Hon RK Langat dated and delivered on October 30, 2019. In the said ruling, the trial Magistrate ordered the appellant to deposit a decretal sum of Kshs 297,500/= as security pending the determination of the suit before it and in default, the attached suit motor vehicle remain in the respondent’s possession. The applicant contends that it is a joint owner of the suit motor vehicle together with Benta Ojala Omollo by virtue of it being her financier, and in the event that the orders should take effect, it remains to be prejudiced since it did not participate in the lower court proceedings. It is evident that the applicant has a stake and may have acquired an interest in the subject suit motor vehicle as evidenced by its supporting documents being a loan application dated March 4, 2015, the copy of logbook marked as 'B' and the hire purchase agreement dated March 4, 2015.

10. In the event this appeal proceeds without the applicant being heard, the applicant will be greatly prejudiced. It has demonstrated its vested interest in the suit motor vehicle. The applicant has therefore met the threshold for admission as an interested party to these proceedings. It has sufficiently demonstrated the personal interest or stake proximate enough to occasion prejudice to it, if not joined in these proceedings.

11. The application dated November 17, 2021 is merited and it is hereby allowed. The following orders do issue:-a.The Co-operative Bank is granted leave to participate in these proceeding’s i.e Appeal as an interested party;b.The appeal do proceed de novo;c.The Record of Appeal be served on the Interested Party and directions to be taken on the appeal March 15, 2023.

Dated, Delivered and Signed at Migori this 7thDay of December, 2022. R. WENDOHJUDGERuling delivered in presence of;-In person AppellantMr. Makori RespondentNyauke - Court Assistant