https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8934

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CIVIL CASE NO E007 OF 2024** **INTRA AFRICA ASSURANCE COMPANY……..……………PLAINTIFF** **VERSUS** **CENTRE SUPERMARKET…………..…………………………DEFENDANT** **HILLARY MAGANGA ONDIEGE…………………………….INTERESTED PARTY** **RULING** **INTRODUCTION** 1. In his Notice of Motion dated 5th June 2025 and filed on 5th November 2025, the Interested Party herein sought that to be enjoined in this suit for the purpose of the instant application and the application dated 15th November 2024. He also sought that this court review, set aside or vacate the orders granted on 7th March 2025 staying the proceedings in **Vihiga PMCC No. E259 of 2024 Hillary Maganga vs Centre Supermarket** and that he be granted leave to file a response to the application dated 15th November 2024 to be heard on merit. 2. Through his advocate, Maureen Akoth Okumu, who swore an affidavit on his behalf in support of the application herein, the Interested Party contended that staying of the proceedings in **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** was unwarranted since he was not a party to the suit and he was not served with the application dated 15th November 2024 and was thus condemned unheard. 3. He was emphatic that it was in the interest of justice that the orders that were issued on 7th March 2025 be set aside and he be granted an opportunity to raise substantive issues in his response to the application dated 15th November 2024. He asserted that he was not served with the application dated 15th November 2024 which was sufficient cause to grant the orders sought. He was emphatic that he would suffer great prejudice if the orders he had sought herein were not granted. 4. In opposing the application, the Plaintiff filed a Replying Affidavit dated 26th June 2025 and filed on 30th June 2025 that was sworn by its Legal Officer, Mary Odera. 5. The Plaintiff averred that the Interested Party failed to demonstrate his personal stake in this suit and hence, his interest in this suit was not proximate enough to warrant his admission. It contended that the issue in the instant suit was whether there was a valid policy between it and the Defendant herein hence, there was no *locus* between it and the Interested Party. 6. It further contended that the Interested Party failed to satisfy the requirements of Order 45 Rule 1 of the Civil Procedure Rules or to demonstrate any prejudice that he was likely to suffer. It asserted that the Interested Party could not raise any valid defence against any party herein until a determination if there was a contractual duty between the Plaintiff and the Defendant in respect of Insurance Policy Number 23/02/CB/0880/CV/5417/COMP. It added that the Interested Party’s claim against the Defendant could proceed if the court determined whether the Plaintiff was entitled to avoid the insurance policy or any claims arising thereto. 7. The Defendant never appeared in this matter despite having been served. It did not also file a response to the Interested Party’s application. The Interested Party filed Written Submissions dated and filed on 19th July 2025. On its part, the Plaintiff filed its Written Submissions dated 3rd September 2025 on even date. This Ruling is, therefore, based on the said Written Submissions. **LEGAL ANALYSIS** 1. The Interested Party reiterated the contents of the Supporting Affidavit and contended that the orders staying **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** was detrimental to his interest since the instant suit and the aforementioned suit had no nexus and could proceed independently of each other. He asserted that the issue in the instant suit was on the contract whereas the issue in **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** was on tort and hence, the stay orders had caused him to be removed from the seat of justice without been given an opportunity to be heard. 2. He cited the case of **Lucy Bosire vs Kehancha Div Land Dispute Tribunal & 20 Others (2013) KEHC 68 (KLR)**, where the court therein invoked the overriding objective under Sections 1A and 1B of the Civil Procedure Act and set aside the *ex parte* orders. 3. On its part, the Plaintiff contended that the Interested Party failed to demonstrate discovery of new evidence and mistake on the face of the record as was provided under Order 45 Rule 1 of the Civil Procedure Rules and hence, failed to meet the threshold to warrant a review. 4. It cited **Francis Muruatetu & Another vs Republic & 5 others (2016) eKLR**, where it was held that in determining whether an interested party could be enjoined in a suit, the interested party had to demonstrate the personal interest or stake it had in the matter, the prejudice it would suffer by its non-joinder and the intended submissions and their relevance to the case. 5. It averred that save for the fact that proceedings in **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** were stayed, the Interested Party did not advance any other reason for the joinder or demonstrate any prejudice that he might suffer since he was not privy to the contract between it and the Defendant or that he could raise any defence or claim in the instant suit. It, however, pointed out that instead, it would suffer prejudice by any adverse order unless the contractual duty between it and the Defendant was first determined as the joinder would cost them a lot of time which could not be compensated by way of damages. 6. It contended that the Interested Party failed to demonstrate that his submissions were not a replication of their and the Defendant’s submissions and because he was not a party to the suit, he would not add any value to the suit herein. 7. Notably, Black’s Law Dictionary, 9th Edition, defines, an **“Interested Party”** as a party who had a recognisable stake in a matter. In the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereafter referred to as the “Mutunga Rules”) further defined an **“Interested Party”** as a party with an identifiable stake or legal interest or duty in the proceedings before the court, but was not a party to the proceedings or directly involved in the litigation. 8. In the case of **Muruatetu & Another vs Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae)** (Supra), the Supreme Court held that where a party was seeking to be enjoined in proceedings as an interested party, he had to move the court by way of a formal application as enjoinment was not as of right, but rather, the same was at the discretion of the court. The court further held that sufficient grounds had to be laid before the court demonstrating the basis of the personal interest or stake that the party had in the matter, the clearly identifiable interest, proximity so that the issue was not merely peripheral, the prejudice to be suffered by the intended interested party in case of non-joinder. 9. An interested party was also required to set out the case and/or submissions it intended to make before the court, and demonstrate the relevance of those submissions. Such a party was also required to demonstrate that the submissions it was intending to make were not merely a replication of what the other parties would be making before the court. 10. It was not disputed that the Proposed Interested Party was a party in Vihiga **PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** which suit this court stayed vide an order dated 7th March 2025 pending hearing and determination of the instant suit. 11. In the said application of 15th November 2024, the Plaintiff had even sought an order to serve the Interested Party herein with the said application and any consequential orders as an interested party solely for the purposes of the said application of 15th November 2024 which order was granted by the court. It was evident that the Interested Party herein was not served with the application dated 15th November 2024 which the impugned order arose from. 12. It was, therefore, the view of this court that opposing the application for the Interested Party to be enjoined herein when the Plaintiff had sought for him to be enjoined as an interested party solely for the application dated 15th November 2024 was not sustainable. In his present application, the Interested Party had only sought to be enjoined in the suit for the purpose of bringing his stake in the application of 15th November 2024 and not the entire suit between the Plaintiff and the Defendant. 13. It was the considered opinion of this court, therefore, that the Proposed Interested Party had shown the personal interest he had in the application dated 15th November 2024 as the Plaintiff had sought that he be enjoined for purposes of that said application. He would be, therefore, be prejudiced if he was shut out from participating in proceedings that directly concerned him. On the other hand, the Plaintiff would not suffer any prejudice if the Proposed Interested Party was enjoined in these proceedings for the just determination of the issues that were before the court for determination in the application dated 15th November 2024. 14. As to whether the orders of 7th March 2025 that stayed the proceedings in **Vihiga PMCC No. E259 of 2024 Hillary Maganga vs Centre Supermarket** should be set aside, it was clear that the orders directly affected the Interested Party herein but he was not given a chance to oppose the application as he was not served with the said application. He contended that the case between him and the Defendant was tortious in nature while that between the Plaintiff and Defendant was contractual, hence they were not related and the same could be heard simultaneously. This was not opposed by the Plaintiff. 15. Though the proceedings before the lower court were not attached, the Plaintiff confirmed that the case between it and the Defendant was based on a contractual policy between them. This meant that the two (2) cases were different and indeed, the Plaintiff herein was not a party in **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket**. 16. Having said so, it was the considered view of this court that it was in the interest of justice if the orders issued by this court staying the proceedings in **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** and dated 7th March 2025 be set aside. It was necessary that the Interested Party be given an opportunity to respond to the said application dated 15th November 2024 so that the same could be heard on merit as the Plaintiff had intended in its said application of 15th November 2024. 17. This court noted that the, staying the proceedings in **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** had the potential of or prejudicing the Interested Party due to a myriad of reasons such as memory loss by witnesses, non-traceability of witnesses and creating a backlog in the court system. In the event the Interested Party was successful in **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket**, judgment would be entered in his favour. 18. Whether the decretal sum would be satisfied by the Plaintiff or the Defendant was an issue that would first have to be resolved in the suit herein. No party would, therefore, suffer any prejudice if **Vihiga PMCC No E259 of 2024 Hillary Maganga vs Centre Supermarket** and the present suit proceeded independently. **DISPOSITION** 1. For the foregoing reasons, the upshot of this court’s decision was that the Interested Party’s Notice of Motion application dated 5th June 2025 and 5th November 2025 was merited and the same be and is hereby allowed in terms of Prayers Nos (1) (2) and (3) therein. Each party to bear its own costs. 2. It is hereby directed that this matter be mentioned before the Deputy Registrar High Court Vihiga on 14th July 2026 for further orders and/or directions relating to the Plaintiff’s Notice of Motion application dated 15th November 2024 and filed on 24th November 2024. 3. It is so ordered. **DATED** and **DELIVERED** at **VIHIGA** this **24th** day of **June** 2026 **J. KAMAU** **JUDGE**