I & M Bank Ltd v Moses Wafula Lufumbi & 2 others (Civil Appeal E021 of 2026) [2026] KEHC 11328 (KLR) (23 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CIVIL APPEAL NO. E021 OF 2026** **I & M BANK LIMITED ........................................GARNISHEE/APPELLANT** **-VERSUS-** **MOSES WAFULA** **LUFUMBI .................DECREE HOLDER/1ST RESPONDENT/ APPLICANT** **AFRICAN MERCHANT ASSURANCE** **COMPANY LIMITED ...............JUDGMENT DEBTOR/2ND RESPONDENT** **AND** **GICHERU & COMPANY ADVOCATES ................... INTERESTED PARTY** **RULING** 1. The applicant, Moses Wafula Lufumbi, moved this court vide a Notice of Motion dated 10th March 2026, brought under **Section 1A, 1B and 3A of the Civil Procedure Act, Order 1 Rule 10(2), Order 51 Rule 1 of the Civil Procedure Rules** and all other enabling provisions of the law, seeking the following orders: 1. **Spent.** 2. **That this Honourable Court be pleased to strike out the Interested Party herein, Gicheru & Company Advocates, as a party to these appellate proceedings.** 3. **That this Honourable Court be pleased to strike out and/or expunge from the Court record the Replying Affidavit sworn by Robert Ondieki Birundu on the 9th day of March, 2026, together with any other pleadings and/or documents filed by the said Interested Party in this Appeal.** 4. **That costs of this application be provided for.** 2. The application is premised on the grounds on the face of it and the Supporting Affidavit of Moses Wafula Lufumbi sworn on 10th March 2026 wherein he deposes that the Interested Party, Gicheru & Company Advocates, who now appears on record as automatically joined to the Appeal, was not a party to the proceedings before the subordinate court in **Kimilili MCCOMSU/E002 of 2025** from which the present Appeal arises, and did not participate in those proceedings in any capacity whatsoever. 3. Furthermore, the Interested Party has neither sought nor obtained leave from this Honourable Court to be joined in these proceedings as mandated by law, nor has any such application been made on its behalf. It is also contended that the appeal before this Court is strictly limited to the record and proceedings of the trial court, and the Interested Party was neither a litigant nor a participant in those proceedings. 4. Consequently, the alleged unilateral joinder of the Interested Party to the current appellate proceedings is unlawful, null, and void ab initio, as joinder is solely within the Court's jurisdiction under the **Civil Procedure Rules**, and no application for joinder as an Interested Party has been submitted to this Honourable Court. 5. The applicant further submits that permitting the Interested Party to participate in this appeal would extend its scope beyond the determinations made by the trial court, thereby inviting this Honourable Court to adjudicate on matters and interests that were never presented before the lower court. 6. Additionally, the Interested Party, in the circumstances, is a stranger to the appellate proceedings, and its continued presence on the record would only serve to unnecessarily complicate and delay the just and expeditious determination of the appeal, without prejudice to any of the properly constituted parties through its removal. It is therefore in the interest of justice, and to prevent a miscarriage of justice, that the application be heard and the relief sought therein be granted. **Replying Affidavit** 1. The Interested Party placed on record a Replying Affidavit sworn by Robert Ondieki Birundu, an advocate of the High Court of Kenya and the appointed advocate in charge of the affairs and winding up of the Interested Party law firm, in reply to the Notice of Motion wherein he deposed that the Interested Party's participation in the instant proceedings is at the instance of the Garnishee/Appellant, which joined it in the Appeal as such, and that the impugned Replying Affidavit on record by the Interested Party, dated 9th March 2026, was filed pursuant to the directions/orders of the Court issued on 25th February 2026 by the Honourable Lady Justice M. S. Shariff, a copy of which directions was annexed as ROB-2. 2. That, contrary to the insinuation by the Applicant that the Interested Party had invited or joined itself into the proceedings, the record of the Court demonstrates otherwise. That the Interested Party need not have participated in the subordinate court proceedings in Kimilili MCCOMSU/E002 of 2025 for it to be an Interested Party in the instant proceedings. 3. That it is now well-settled law that an Interested Party is one who has a stake in the proceedings, though he or she was not a party to the case from the outset. The interest of the Interested Party in the current proceedings is based on the fact that the Garnishee has asserted that it was served with a Garnishee Order Absolute by the 1st Respondent, originating from the subordinate court in **Kimilili MCCOMM E002 of 2024**. 4. This order compels the Garnishee to satisfy a decree from funds already frozen by a High Court Order issued on 10th November 2025 by the Honourable Justice Grace Nzioka in **Naivasha High Court Miscellaneous Cause No. 1 of 2019, Gicheru & Company Advocates v AMACO Insurance Company Ltd. & 2 Others**. In this case, the Interested Party is the Decree Holder, and the series of orders issued by the superior court concerning this matter are annexed as ROB-3(a), (b), and (c). 5. That the far-reaching implications of the orders of the subordinate court are that of unsettling an order already in place, issued by the High Court in Naivasha in favour of the Interested Party, which order has not been varied, set aside, or appealed against. That only the Interested Party can champion its cause, since any decision made by this Court will ultimately affect it in the event its stake is not properly articulated; and 6. That the Applicant has not demonstrated the prejudice it stands to suffer by the joinder of the Interested Party in the instant proceedings. That, accordingly, and from the foregoing legal positions, the Interested Party is a necessary party in these proceedings, only to the extent of urging its stake as already demonstrated. 7. The court directed that the matter be canvassed by way of written submissions and Counsels in compliance thereto filed their respective submissions as hereunder summarised. **Applicant's (1st Respondent's) Submissions** 1. Learned Counsel for the Applicant filed written submissions substantially reiterating and amplifying the grounds set out in the Notice of Motion and supporting affidavit. Counsel framed the sole issue for determination as being whether the Interested Party is a necessary party in determining the proceedings before this Court. 2. It was submitted that the Interested Party, who now appears on record as automatically joined to the Appeal, was not a party to the proceedings in the subordinate court from which the present Appeal arises and did not participate in the said proceedings in any capacity whatsoever. Further, the Interested Party neither sought nor obtained leave of the Court to be joined, as required by law, no such application having been made on its behalf. 3. Counsel maintained that the Appeal before this Court is strictly confined to the record and proceedings of the trial court, and that the purported unilateral joinder of the Interested Party is unlawful, null and void ab initio, such power being strictly a preserve of the Court under the **Civil Procedure Rules**. 4. Counsel cited the case of **Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2014] eKLR**, wherein the court determined that an Interested Party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. It was argued that the stake asserted by the Interested Party in the current proceedings is that it has been served with a Garnishee Order Absolute issued by the 1st Respondent/Applicant, originating from the subordinate court in **Kimilili MCCOMSU/E002 of 2025**. 5. This order compels the Interested Party to satisfy a decree from funds that were previously frozen through a High Court order issued on 10th November, 2025, by Honourable Justice Grace Nzioka **in Naivasha High Court Misc. No. 1 of 2019, Gicheru & Company Advocates v African Merchant Assurance Company Limited & 2 Others**, in which the Interested Party is recognized as the decree holder. 6. It was submitted, without conceding the merits of that stake, that the far-reaching implications of the orders of the subordinate court are that they unsettle an order already made by the High Court at Naivasha in favour of the Interested Party, which order has not been varied, set aside or appealed against. 7. Counsel urged, however, that only the Interested Party can champion its own cause, and that any decision made by this Court will ultimately affect it in the event that its stake is not properly articulated, ultimately conceding, albeit obliquely, that the Interested Party has a determinable interest capable of being affected by the outcome of the Appeal. 8. It was nonetheless submitted that the Applicant has not demonstrated the prejudice it stands to suffer by the joinder of the Interested Party in the present proceedings. Furthermore, it was argued that the participation of the Interested Party should be addressed by applying to vary, set aside, or appeal against the orders and directions issued by this Court on 25th February 2026. These orders required the Interested Party to participate in the current proceedings. 9. The submission contended that the Interested Party's act of filing a Replying Affidavit and other pleadings, without first applying to set aside, vary, or appeal those orders, constitutes, in essence, a disguised appeal against the orders and directions. 10. On that basis, Counsel urged the Court to dismiss the application dated 10th March, 2026, with costs. **Garnishee/Appellant's Submissions** 1. Learned Counsel for the Garnishee/Appellant opposed the application through equally comprehensive submissions. Counsel provided an overview of the background to the appeal, tracing it to the ruling of the Magistrate's Court at Kimilili in **MCCOMMSU E002 of 2024**. The court's decision authorized the release of funds frozen in Naivasha HCCC Misc. No. 1 of 2019 to the Decree Holder on 10th November 2025, an order issued prior to the Garnishee Application at Kimilili. 2. This occurred even though the Garnishee had filed a Replying Affidavit indicating that the funds in the Judgment Debtor's account had been frozen by order of the High Court at Naivasha pending the resolution of the suit therein. It was argued that the trial court's oversight of that order resulted in the Garnishee being unable to satisfy the decretal amount sought at Kimilili. Consequently, the Decree Holder initiated contempt of court proceedings against the Garnishee, leading to the current appeal. 3. It was further submitted that the Interested Party herein is the Decree Holder in **Naivasha Misc. No. 1 of 2019,** and that the Garnishee therefore deemed it fit to join it as a party to the instant suit in order to explain the position that the High Court at Naivasha had already issued orders freezing the funds in question, and that the Interested Party is the beneficiary of the Garnishee Order Absolute issued at Naivasha High Court. Counsel framed the issue for determination as whether the applicants ought to be joined in the suit as interested parties. 4. Counsel placed reliance on **Order 1 Rule 10(2) of the Civil Procedure Rules**, which empowers the Court, at any stage of the proceedings, either upon or without the application of either party, and on such terms as the Court deems just, to order the removal of the name of any party improperly joined be struck out, or that the name of any person whose presence is necessary to enable the Court to effectively and fully adjudicate and resolve all questions involved in the suit. 5. It was argued, citing **Civicon Limited v Kivuwatt Limited & 2 Others**, that the Court's authority to add a party to a suit is extensive and discretionary, the primary criterion being whether the party has an interest in the suit. 6. Counsel further relied on **Yawa & 35001 Others v Chome (suing as the legal administrator of the estate of Mumba Chome Ngala) (deceased) and 19 Others (Civil Application No. 100 of 2018) [2018] KECA 35 (KLR)** to support the proposition that the fundamental reason for the joinder of any party to proceedings is to include a necessary party for the purpose of properly determining the substantive issue in dispute. 7. Furthermore, it was asserted that the joinder of a party, much like the amendment of pleadings, should be permitted freely and at any stage of the proceedings, provided that such inclusion does not cause prejudice or injustice to the other party that cannot be adequately compensated through costs. 8. The counsel delineated, from the same authority, a threefold, non-exhaustive set of criteria for joinder: firstly, that the applicant must demonstrate that their addition as a new party would be desirable and would assist the court in resolving all matters in dispute; secondly, that the joinder would not prejudice the rights of the other parties; and thirdly, that the joinder would not vex the parties or complicate the proceedings with extraneous matters or grounds not contemplated by the parties or envisaged in the pleadings. 9. It was submitted that the Interested Party, as the decree holder in **Naivasha Misc. No. 1 of 2019,** is a party whose funds in contention had been frozen by a court first in time and higher hierarchy than the Magistrate's Court at Kimilili. The Interested Party's order to unfreeze the funds resulted in their transfer to it as the Decree Holder. Consequently, due process was followed, and it was the first to have orders issued against the funds. 10. Therefore, it maintains a verifiable interest at risk should the Court uphold what Counsel characterized as the flawed decision of the trial court at Kimilili. Additionally, reliance was placed on **Civicon Limited**, which posits that the question is whether a person's rights may be affected in the absence of their inclusion as a party. Generally, in exercising jurisdiction, the court considers whether a party ought to have been joined and whether, without their presence, the matter can be completely and effectively adjudicated. 11. Based on this premise, Counsel argued that the Garnishee had duly summoned the Interested Party to participate in the proceedings, enabling the Court to ascertain the rightful recipient of the funds in its custody on behalf of the Judgment Debtor. This action fulfils the initial requirement set out in the **Yawa** **case(supra).** Furthermore, the inclusion of the Interested Party is asserted not to be prejudicial to either side; it merely seeks to articulate its position concerning the funds held by the Garnishee. 12. Consequently, no reasonable prejudice is anticipated to be suffered by either party as a result of Gicheru & Company Advocates being joined as an Interested Party. Additionally, it is emphasized that there is no intention to introduce vexatious claims or to complicate the proceedings unnecessarily, as the subject matter remains consistent, namely, the same funds that are under the same freezing order issued by the Naivasha court, which the Magistrate's Court at Kimilili sought to unfreeze and transfer to the Decree Holder. 13. Counsel submitted, to the contrary, that it is the 1st Respondent who seeks to introduce vexatious matters by seeking to have the Interested Party struck out simply on the basis that it was not a party to the proceedings at the trial court, a position said to be neither good law nor supported by binding authority. 14. Reliance was placed on the case of **Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2014] eKLR (Petition No. 12 of 2013),** in which the Supreme Court clarified the role of an Interested Party as one who has a stake in the proceedings despite not being a party to the case initially. Such a party is one who will be impacted by the court's decision, regardless of the outcome, and whose interests may not be adequately articulated unless they participate in the proceedings to advocate for their interests. 15. It was further argued that the underlying premise is that an intended interested party is not required to have participated in the proceedings from the outset. Instead, such a party is one whose rights or interests could be prejudiced if they are not joined in the suit to present their case to the court and safeguard their interests. 16. It was contended that the assumption by the 1st Respondent that the intended Interested Party should have participated in the lower court proceedings is misguided and flawed, both in fact and in law. Furthermore, it was emphasized that, insofar as the Interested Party has a verifiable stake in the proceedings or aims to guide the court towards making definitive findings on the matters in contention, its joinder is appropriate. 17. In support of this position, reference was made to **Mbaruk Abdalla Suleiman & 5 Others v Mombasa Cement Limited & 5 Others [2018] eKLR**, which held that the fundamental purpose of permitting joinder in proceedings is to enable the court to achieve a conclusive determination of the genuine issues in dispute. 18. In conclusion, Counsel submitted that the Garnishee had extensively demonstrated that the Interested Party is a necessary party to the suit, the issue it wishes to raise being also necessary to the suit, in that it is the same subject matter in two court proceedings and that the application as presented by the 1st Respondent is vexatious and amounts to an attempt at obscuring the Court from making a determination based on the actual facts. 19. Counsel prayed that the application be dismissed with costs to the Garnishee/Appellant. **Interested Party's Written Submissions** 1. Learned Counsel for the Interested Party likewise opposed the application, framing the issue for determination as being whether the Interested Party is a necessary party in determining the proceedings before this Court. 2. Counsel set out the brief facts that the Appeal arises from the ruling of the Subordinate Court in **Kimilili MCCOMSU/E002 of 2025**, **Moses Wafula Lufumbi v I & M Bank Limited & Others**, and that the far-reaching implications of the orders of the Subordinate Court are that they compel the Garnishee to settle a decree from funds already frozen through a High Court order issued on 10th November, 2025 by the Honourable Justice Grace Nzioka in **Naivasha High Court Misc. No. 1 of 2019, Gicheru & Company Advocates v AMACO Insurance Company Ltd & 2 Others**, in which the Interested Party is the decree holder. 3. Counsel averred that the Garnishee, being the party that directed the interference with funds already frozen through a superior court order, joined the Interested Party to the Appeal proceedings before this Court, whereupon the Interested Party was invited by the Court, in the directions issued on 25th February, 2026, to canvass the application by way of written submissions and to place its position on record through the Replying Affidavit sworn by Robert Ondieki Birundu on 9th March, 2026, on behalf of the Interested Party. 4. Counsel submitted that the Applicant has not, anywhere in these appellate proceedings, demonstrated the prejudice it stands to suffer by the joinder of the Interested Party. It was contended that the Interested Party is a necessary party whose stake stands to suffer prejudice should it be excluded, since only it can champion its own cause, and the ultimate decision of this Court will affect it whether its stake is properly articulated before the Court. 5. Further, that the Applicant's determined fight to exclude the Interested Party from the instant proceedings, absent any demonstrated prejudice, can only mean that the Applicant harbours an ulterior motive in seeking the orders sought in the application. 6. Counsel submitted, citing the authority of **Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2014] eKLR**, that it is now well-established law that an interested party is one who possesses a stake in the proceedings, even if not initially a party to the cause. 7. The Interested Party's stake in the current proceedings pertains to the fact that the Garnishee has argued and demonstrated that it has been served with a Garnishee Order Absolute issued by the Subordinate Court in **Kimilili MCCOMM E002 of 2024**, which obligates it to satisfy a decree from funds that have already been frozen via a High Court Order issued on 10th November, 2025, by the Honourable Justice Grace Nzioka in **Naivasha High Court Misc. No. 1 of 2019**, **Gicheru & Company Advocates v. AMACO Insurance Company Ltd and others**. In this case, the Interested Party is the decree holder. 8. It was further submitted, and this was a central inclination of the Interested Party's case, that an Interested Party need not have participated in the proceedings before the subordinate court for it to qualify as an interested party in the instant proceedings. 9. The reason is that it is now well-established law that an interested party is one who has a stake in the proceedings. Even if he or she was not a party to the cause initially, the extensive implications of the court's orders imply that they may alter an existing judgment issued by the High Court in Naivasha in favour of the Interested Party, which judgment has not been varied, set aside, or appealed. 10. Only the Interested Party can effectively advocate for its interest, as any decision made by this Court will ultimately affect it if its stake is not properly articulated. Furthermore, the Applicant has not demonstrated the prejudice it stands to suffer from the joinder of the Interested Party in these proceedings. 11. Counsel submitted that, accordingly, and from the foregoing legal positions, the Interested Party is a necessary party to these proceedings only to the extent of urging its stake as already demonstrated, and that the impugned Replying Affidavit sworn on 9th March, 2026, that required the Interested Party to participate in the instant proceedings, was properly filed pursuant to the orders and directions of this Court issued on 25th February, 2026, which orders/directions have not been set aside or appealed against. 12. Furthermore, counsel argued that if the applicant is dissatisfied with the impugned orders or directions issued by this Court on 25th February 2026, which mandated the participation of the interested party in the current proceedings, the appropriate course of action is to seek a variation, setting aside, or appeal against those orders or directions. 13. Such actions constitute a disguised appeal, rather than a new application urging the interested party to the extent of its stake as previously demonstrated. It is improper to bypass this process by filing a new application that essentially serves as a disguised appeal against the orders issued by this Court on 25th February 2026. 14. Counsel accordingly urged the Court to dismiss the application dated 10th March 2026 with costs. **Determination** 1. Having considered the application, the affidavits on record and the rival submissions, I find that the singular issue falling for determination is; **Whether the Interested Party, Gicheru & Company Advocates, is properly on record as a necessary party to this Appeal, or whether it ought to be struck out together with its Replying Affidavit for want of a formal application for joinder and leave of the Court.** 1. **Order 1 Rule 10(2) of the Civil Procedure Rules** empowers the Court, at any stage of the proceedings, either upon or without the application of either party, to order that the name of any person whose presence may be necessary to enable the Court effectually and completely adjudicate upon and settle all questions in the suit be added as a party. As was held in **Civicon Limited v Kivuwatt Limited & 2 Others** where the court held that, **"From the forgoing the power of the court to add a party to a suit is wide and discretionary, the overriding consideration being whether he has interest in the suit."** 1. The Supreme Court, in **Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2014] eKLR**, defined an interested party as **“an interested party is one who has a stake in the proceedings, though he or she was not 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 she herself appears in the proceedings, and champions his or her cause.”** 1. This was elaborated upon in **Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR,** where the Court held that; **(1) A person may at any time in any proceedings before the Court apply for leave to be joined as an interested party.** **(2) An application under this rule shall include-** 1. **a description of the interested party;** 2. **any prejudice that the interested party would suffer if the intervention was denied; and** 3. **the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties”.** 4. Applying these principles to the facts before me, I am satisfied that the Interested Party has demonstrated a proximate and clearly identifiable stake in this Appeal. It is not in dispute that the Interested Party is the Decree Holder in **Naivasha HCCC Misc. No. 1 of 2019**, in which proceedings an order was issued on 10th November 2025 over the very funds held by the Garnishee that are the subject of the Kimilili garnishee proceedings now on appeal. 5. The outcome of this Appeal, whichever way it goes, will therefore directly affect the Interested Party's entitlement under the Naivasha order. This is not the peripheral or speculative interest that the law frowns upon; it is a live and substantive conflict between two decretal claims over the same res, which this Court cannot effectually and completely resolve without input from the Interested Party. 6. On prejudice, I find that the 1st Respondent/Applicant has not demonstrated, beyond the bare procedural objection, any specific prejudice it stands to suffer by reason of the Interested Party's presence on the record. 7. The 1st Respondent's contention that the Appeal is confined to the record of the trial court is well taken as a general proposition, but it does not, without more, answer the practical difficulty that the Garnishee's defence to the garnishee proceedings is itself anchored on the existence and effect of the Naivasha order held by the Interested Party. To exclude the Interested Party from these proceedings while leaving that very order in the balance would be to determine the Appeal in a vacuum. 8. I am alive to the 1st Respondent's submission that no formal application for leave to join was made by or on behalf of the Interested Party before this Court, and that the power to join a party is a preserve of the Court under **Order 1 Rule 10(2)**. This submission is correct as a statement of principle. 9. However, the record of the court shows that the Interested Party's Replying Affidavit of 9th March 2026 was not a unilateral or unsanctioned entry into these proceedings. It was filed, as deponed to and unrebutted, pursuant to the directions issued by this court on 25th February 2026 by Hon Lady Justice Shariff, which directions themselves contemplated the Interested Party's participation in canvassing the application then before the Court. In these circumstances, it cannot correctly be said that the Interested Party's presence on the record is entirely without the sanction of the Court. 10. For the foregoing reasons, the Court finds that the Notice of Motion dated 10th March 2026 is without merit. The Interested Party, Gicheru & Company Advocates, by way of the Replying Affidavit dated 9th March 2026 filled at the instance of the court, has demonstrated a sufficient, proximate and identifiable stake in the subject matter of this Appeal to warrant its continued participation, and no demonstrable prejudice has been shown to attend its presence on the record. Accordingly, the Court makes the following final orders; 11. **That the Notice of Motion dated 10th March 2026 be and is now hereby dismissed for want of merit;** 12. **That the interested party, Gicheru & Company Advocates, shall remain properly on record as an Interested Party in these appellate proceedings;** 13. **That the replying affidavit sworn by Robert Ondieki Birundu on behalf of the Interested Party shall remain on the record and shall be considered together with the other pleadings in the determination of the substantive appeal;** 14. **That the costs of this application shall be in the appeal.** **Read, Dated and Signed at BUNGOMA on 23rd July 2026** **E. OMINDE** **JUDGE**