https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12055

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCCOMM CASE NO. E307 OF 2026** **JENNI KAJUJU KAGEENU..............…..................................... PLAINTIFF** **VERSUS** **ABSA BANK KENYA PLC.......…..……............................. 1ST DEFENDANT** **DALALI TRADERS AUCTIONEERS....……..……........… 2ND DEFENDANT** **AND** **MIG TRADING CO. LTD... PROPOSED INTERESTED PARTY/APPLICANT** **RULING** 1. The temple of justice rests securely on the twin pillars of fairness and completeness. The *audi alteram partem* rule—hear the other side—strictly forbids this Court from adjudicating disputes in a vacuum or behind the backs of those whose substantive rights stand to be irreversibly altered by its decrees. When this Court's injunctive pen is poised to freeze or strike down a commercial transaction, the beneficiary of that transaction must be accorded a seat at the judicial table. To do otherwise is to administer judicial ambush rather than justice. **Background Facts** 2. The Application before the Court for determination is the Notice of Motion dated 15th July, 2026. It is filed by **MIG Trading Co. Ltd** (the Proposed Interested Party). The Applicant seeks to be formally be joined in these proceedings. This is in order to defend its proprietary and financial interests arising from a public auction sale of the suit property. 3. The Application seeks the following prayers: i) *THAT this Application be certified as urgent and heard ex-parte in the first instance.* *ii) THAT pending the hearing and determination of this Application, this Honourable Court be pleased to stay any proceedings herein and/or restrain any orders affecting the transfer, registration, or disposition of the suit property.* *iii) THAT this Honourable Court be pleased to enjoin* ***MIG Trading Co. Ltd*** *as an Interested Party in this suit, being the bona fide purchaser for value of the suit property known as VILLA NUMBER SPG/03/P1/1041 (ORIGINAL NUMBER 152) OF IRIS COURT 4 VILLAS LIMITED ERECTED ON LAND REFERENCE NUMBER 28223/33 (ORIGINAL NUMBER 28223/2) FOURWAYS JUNCTION pursuant to the public auction conducted on 31st March, 2026.* *iv) THAT upon such joinder, the Applicant be granted leave to file and serve its pleadings, responses, and all necessary documents within such time as this Honourable Court may deem fit and just to direct.* *v) THAT the costs of this application be in the cause.* *vi) THAT this Honourable Court be pleased to grant such further orders as it may deem just and expedient in the circumstances.* 4. The Plaintiff was advanced a credit facility of Kshs. 20,000,000 by the 1st Defendant in 2022, secured by a first-ranking legal charge over the suit property (a maisonette at Fourways Junction). Following a default in repayment, the 1st Defendant instructed the 2nd Defendant (an auctioneer) to exercise its statutory power of sale. 5. A public auction was conducted on 31st March, 2026, wherein the Applicant emerged as the highest bidder at a purchase price of Kshs. 17,300,000. A Memorandum of Sale was executed, and the Applicant paid the requisite 10% deposit. The Applicant subsequently secured a financing facility of Kshs. 12,000,000 from the 1st Defendant to complete the balance of the purchase price within the stipulated 90 days. 6. However, on 7th May, 2026, the Plaintiff filed the instant suit and an attendant application for an injunction, alleging that her equity of redemption had been unlawfully clogged, proper notices were not served, and the property was sold at an undervalue. On 12th May, 2026, this Court intervened, issuing an interim injunction halting the transfer of the property pending the hearing of the application. Consequently, the 1st Defendant withheld the release of the Applicant's financing facility, leaving the Applicant in a state of commercial paralysis. The Applicant now seeks joinder to protect its acquisition. The Plaintiff opposes the joinder, arguing that the Applicant fell into default for failing to pay the balance within 90 days and therefore its interest is extinguished. 7. The Defendants opted to sit out the hearing of this application, seeing that no orders were sought against them. **Issues for Determination** 8. The Court has perused the Application, the response and the oral highlights by Counsel for the parties. It frames a single issue for determination: 1. *Whether the Applicant meets the legal threshold for joinder under* ***Order 1 Rule 10(2) of the Civil Procedure Rules, 2010****.* **Analysis** 9. **Order 1 Rule 10(2)** of the Civil Procedure Rules empowers the Court, at any stage of the proceedings, to add the name of any person whose presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. 10. The Court of Appeal in ***Civicon Limited v Kivuwatt Limited & 2 others [2015] KECA 588 (KLR)***elucidated the distinction between a necessary party and a proper party. A necessary party is one without whom no effective order can be made, while a proper party is one whose presence enables the Court to completely and finally adjudicate the matters in dispute. 11. The Applicant herein holds a Memorandum of Sale dated 31st March, 2026, and has paid a substantial deposit. The Plaintiff seeks a permanent injunction and declarations that would invalidate the Applicant's purchase. If this Court were to hear and determine the Plaintiff’s application for injunction—and potentially the main suit—without hearing the purchaser, any resultant decree would invariably condemn the Applicant unheard and trample upon its vested contractual and equitable rights. The prejudice to the Applicant is immense: risks losing the benefit of its bargain and faces exposure to financial liabilities. Conversely, no prejudice is occasioned to the Plaintiff by having the purchaser joined; it merely ensures that the battle lines are fully drawn and that all cards are laid on the table. The Applicant is undeniably both a proper and a necessary party. 12. The Court notes that the Application for injunction by way of a Notice of Motion is yet to be heard. For that reason, the Court warns itself to refrain from making any further determinations until the parties ventilate their cases fully before this Court. It is for that reason that all the other issues raised by the Plaintiff as to the validity of the sale to the Interested Party ought to be heard with all parties on board. 13. The Applicant is a necessary and proper party whose inclusion will prevent a multiplicity of suits and allow this Court to comprehensively adjudicate the dispute over the suit property. 14. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. The order that commends itself to this Court is that let the costs be in the cause. **Determination** 15. The Court determines the Interested Party’s application by way of a Notice of Motion dated 15th July, 2026 as follows: 1. *The Interested Party’s Notice of Motion dated 15th July, 2026 is HEREBY allowed.* 2. *THAT this Honourable Court HEREBY joins* ***MIG Trading Co. Ltd*** *as an Interested Party in this suit.* 3. *THAT further directions as to the filing of pleadings by parties shall be issued upon the delivery of this Ruling.* 4. *The interim orders issued on 12 May, 2026 shall remain in force pending the inter-partes hearing of the application for injunction dated 7th May, 2026, which shall now be heard with the participation of all parties.* 5. *Costs of this application shall be in the cause.* 16. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 29TH DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Mr. Njoroge for the Plaintiff/Respondent. Miss Wameyo holding brief for Mr. Deya for the 1st and 2nd Defendants/Respondents. Miss Omala for the Interested Party/Applicant. Mr. John Paul - Court Assistant.