https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10372

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ITEN** **CIVIL APPEAL NO. E007 OF 2023** **KCB KENYA LIMITED ....................................APPELLANT/RESPONDENT** **VERSUS** **ABRAHAM KOSGEI MISOI ................................................1ST RESPONDENT** **SAMUEL KIPRONO ROTICH ...........................................2ND RESPONDENT** **AGNES JEPOTIBIN KIBET ...................INTENDED INTERESTED PARTY** **RULING** 1. By a Notice of Motion dated 1st November 2024, the Intended Interested Party, Agnes Jebotibin Kibet, moved the court under the provisions of **Section 3A of the Civil Procedure Act** and all enabling provisions of the Law seeks the following orders: 2. **That this Application be certified as urgent and service be dispensed with in the first instance.** 3. **That leave be granted to the Applicant to be joined in the proceedings as an Interested Party.** 4. **That leave be granted to the Interested Party to file submissions to this Appeal.** 5. **That costs of this Application be in the cause.** 6. The Application is premised on grounds that; 7. **That the proposed Interested Party is the spouse to the 1st Respondent who is the proprietor of all that land comprised in Title No. Pioneer/Ngeria Block 1 (EATEC)/9963 which is the subject matter of these proceedings and which property is the matrimonial home.** 8. **That the Applicant/Interested Party has a lawful interest/stake in this suit that seeks to take away her rights in the matrimonial home as spouse.** 9. **That the joinder will provide protection of the rights of the Applicant who would otherwise be prejudice and/or adversely affected in Law.** 10. **That joinder of the Applicant is a great resource to this Court to help it determine all the issues before it completely and prevent unending litigation.** 11. **The question of spousal consent is a question of Law and a right that exists in Law.** 12. **That the Applicant is not introducing a new matter but helping this Court determine all issues before it jurisdiction to join a party at this stage and deal with the issues wholesomely.** 13. **That unless the proposed Interested Party is joined in the suit, she will likely be prejudiced by these proceedings as her interests will not be adequately articulated.** 14. **That disallowing the application is tantamount to driving the Applicant away from the seat of justice and condemning her unheard hence a violation of her Constitutional rights.** 15. The Application is further supported by the Affidavit sworn by the Intended Interested Party on the same date. She deposed that she is the spouse to the 1st Respondent, who is the proprietor of all that land comprised in Title NO. **Pioneer/Ngeria Block 1 (EATEC)/9963** which is the subject matter of these proceedings, and which property is their matrimonial home. 16. She further deposed that upon perusal of the Appellant's Statement of Defence at the trial court, she noted that they did acknowledge paragraph 4 of the said defence that the property used as collateral belongs to the 1st Respondent, her husband, and that the same is a matrimonial home. 17. The Applicant maintained that she has a lawful interest/stake in this suit that seeks to take away my spousal rights in the matrimonial home and that it has come to her knowledge, about a week ago, that their matrimonial home was used as collateral in a loan advanced to the 2nd Respondent by the Appellant fraudulently without her consent as a spouse, that upon further inquiry, she has also noted that there have been proceedings that were concluded though in favour of her husband and their matrimonial home at the lower court, which she was not aware of, and she could not have been a party because the same was never brought to her attention. 18. The Applicant asserts that it is at the appeal stage that she has come to know of what has been going on behind her back and as such, she seeks to protect her interests as a spouse since her rights cannot be properly articulated in her absence. 19. The Applicant deposed that from the word go, a loan was advanced to the 2nd Respondent and even further loans against their matrimonial home, which she seeks to protect, without her consent in breach of the established principles of law and that ground no. 4 in the Memorandum of Appeal touches on this question of law that she seeks to help this court fully address hence it is not an introduction of a new matter. 20. The Applicant maintained that this application does not seek to raise any new issues or evidence as the question of spousal consent was raised during cross-examination and DW1 did confirm that the spousal consent did not exist in their documents. She urged that being a first appeal, this court has unfettered discretion to relook at the evidence and pleadings on trial, re-evaluate and make its independent decision. 21. The Applicant further deposed that after learning of the fraud, she has since reported the same at Langas Police Station in Eldoret under OB/NO.69 and investigations have commenced. The Applicant urged that a party can be admitted at any stage of the proceedings if the joinder will provide the protection of rights of a party who would otherwise be prejudiced and/or adversely affected by law. 22. The Applicant is apprehensive that if this Appeal succeeds, the Appellant would be at liberty to auction their matrimonial home and this order will adversely affect her and the children, hence the importance of this application. 23. The Applicant contended that unless she is joined as an Interested Party to these proceedings, she stands to suffer irreparably in case an order affecting our matrimonial home is issued, as this is tantamount to driving me away from the seat of justice and being condemned unheard, hence the violation of her constitutional rights. **Response** 1. The Application is opposed by the Appellant vide the Replying Affidavit sworn On 28/10/2025, by one **Henry Rono,** the Appellant’s credit manager. He deposed that the application is procedurally irregular and impermissible as the Applicant was not a party to the proceedings at the trial court, and her seeking to be enjoined for the first time at the appellate stage would amount to introducing fresh matters, contrary to the principles of appellate jurisdiction. 2. He contended that from the pleadings, the issue of spousal consent was never pleaded by the 1st Respondent hence the court ought to restrain itself to the pleadings. 3. He urged that the matter was heard with both the 1st Respondent and Representative from the bank testifying vide **ITEN SRMCC No. 1 of 2015 Abraham Kosgei Misoi -Vs- Kenya Commercial Bank & Another** and the court deliberated on the issues raised hence the prayers sought in the application is an afterthought and prejudicial to the appeal and the Appellant as they will not have the opportunity to cross-examine the interested party if allowed to join the suit and submit evidence. 4. He contended that the Application does not disclose the Applicant’s direct, identifiable, and legal interest in the subject matter, as the Applicant’s claim is personal and tangential to the commercial dispute between the Appellant and the Respondents, and the Applicant therefore, does not meet the threshold for admission as an interested party in light of the prerequisites for such admission. 5. He further deposed that the Applicant’s remedy, if any, potentially lies in a separate suit for matrimonial property rights or for declarations related to the validity of the charge and the subject overdraft and should therefore not interfere with concluded litigation by seeking admission as an interested party at the appeal stage. 6. According to the Appellant, the intended admission of the Applicant as an interested party amounts to a flagrant abuse of court process and will prejudice the appeal, as the Applicant’s move is an afterthought and an attempt to derail or delay the appellate proceedings, and that the instant dispute centres on the enforcement of a charge, not on matrimonial property rights or spousal consent. 7. He urged that the Applicant’s presence is not necessary for the just determination of the issues raised in the appeal as allowing the Application would expand the scope of the appeal beyond the record from the trial court, contrary to the Civil Procedure Rules, which confines appeals to the record as determined at the lower court. He added that the Application does not show how the participation of the Applicant will assist the court in the just and fair resolution of the matter, as adding the Applicant as an interested party will not add value to the proceedings and will merely complicate the present appeal leading to, leading to unnecessary delays or confusion. 8. He urged further that the nature of the Applicant’s interest may only suffice if brought vide other fora as the law provides her with alternative recourse, such as filing a separate suit under the Matrimonial Property Act, challenging the charge and/or seeking declarations on her rights as a spouse and therefore, the Applicant cannot be allowed to use the appellate process as a shortcut to ventilate issues she ought to have raised earlier or in a different forum. 9. He further deposed that allowing joinder at this stage would set a dangerous precedent and undermine the finality of litigation, as parties are inclined to bring all their claims at the appropriate time and level and the court must discourage piecemeal litigation and interventions after judgments are rendered. 10. He contended that the application as presently constituted will occasion miscarriage of justice and great prejudice to the Appellant/Respondent. 11. He further deposed that the Application is without merit, frivolous and an abuse of the court process and should therefore be dismissed with costs to the Appellant. **Supplementary Affidavit** 1. The Applicant/Interested Party also filed a Supplementary Affidavit dated 10/11/2025, basically reiterating the contents of her Affidavit in Support of the Application and thus I find no reason to reproduced the same. **Submissions** 1. The Application was canvassed vide written submissions. Both parties filed their respective submissions and in addition, the Applicant also filed Supplementary Submissions. **The Applicant’s/Interested Party Submissions** 1. In regard to whether the Intended Interested Party has a direct legal interest in the subject matter of the appeal, Counsel for the Applicant submitted that the Intended Interested Party has a direct, legal and protectable interest in the subject matter of this appeal and that she stands to suffer prejudice if she is not joined in this appeal. 2. Counsel argued that the Respondents have not disputed the fact that the charged property is the matrimonial home of the Intended Interested Party and that the same is the family home where the Intended Interested party together with the 1st Respondent, and their children reside. Counsel added that the trial Court, in its wisdom, held that the property constitutes a matrimonial home and that spousal consent was required in the creation of the charge. 3. Counsel pointed out that in the Judgment dated 5th July 2023, the Learned Magistrate identified that the Appellant, in its pleadings, filed and produced a loan application form dated 25th July 2013 and that the loan application form showed that the loan security, being the suit property was a "family residential home". Counsel also highlighted that, in the defence dated 19th February 2015, specifically under paragraph 4 of the same, the Appellants conceded that the suit property is indeed the 1st Respondent’s matrimonial home. 4. Counsel submitted that the trial Court, in its judgment, stated that consequent to the above loan application form, the Appellant knew that the charged property was a home to the 1st Respondent's family and therefore subject to spousal consent. Counsel urged that it is an undisputed fact that the charged property is a family home and that the same comprises of a matrimonial home. Counsel added that trial Court rightfully opined that the parties to a case are bound by their pleadings and that the Appellants therefore cannot controvert/oppose their own pleadings. 5. Counsel asserted that having established that the charged property was indeed a family home, the Intended Interested Party, as a spouse, has a direct, legal, and protectable interest in the property as protected under the Land Act. 6. Counsel urged that a spouse's interest in property acquired during the pendency of their marriage has been codified in Kenyan Law. Counsel cited Section 2 and Section 79 (3) of the Land Act and submitted that from the said provisions it is very clearly outlined that a spouse indeed has interest/rights over matrimonial property and any charge must be accompanied by written consent. Counsel maintained that the Intended Interested Party has direct and legal rights over the suit property by virtue of it being her matrimonial home. Counsel added the issue of validity of a charge based on lack of spousal consent can only be canvassed before a commercial court as the charge is a commercial instrument. 7. In regard to whether the Applicant seeks to introduce new issues on appellate level, Counsel submitted that the Appellant's main averment is that the Intended Interested Party seeks to introduce new issues at the Appellate stage. Counsel urged that the Applicant only seeks to argue based on the issue of spousal consent and spousal rights. Counsel contended that this issue was already determined by the trial court. Counsel added that the issue prominently featured in the trial Court judgment, with the Learned Magistrate observing that the Appellant admitted the property is a matrimonial home. 8. Counsel further submitted that he identification of the collateral as a “family residential home” in the loan application form and the Appellant's own defence concedes this fact. Counsel urged that this is not a novel issue. He submitted that both parties introduced the issue of spousal rights through their pleadings. Section 79(3) of the Land Act makes spousal consent a requirement once property is identified as a matrimonial home. Counsel reiterated that the Applicant does not seek to introduce new issues but intends to submit on issues already discussed. Only the Applicant can argue this properly as the party directly affected. 9. On the issue of prejudice, Counsel submitted that the Appellant has failed to indicate any prejudice they shall face. He urged that on the other hand, the Applicant is at risk of being evicted from a home she has known for the past sixteen years. **The Appellant’s Submissions** 1. Counsel for the Appellant submitted that the Applicant has failed to satisfy the legal threshold for admission as an interested party in the present proceedings. Counsel urged that the law is settled that for a party to be enjoined as an interested party, they must demonstrate a direct, identifiable, and proximate interest in the subject matter of the suit, which is not remote, speculative, or merely academic. Counsel added that the Applicant must further show that their participation is necessary to assist the Court in effectually and completely adjudicating upon and settling all questions involved in the matter, and that they will suffer prejudice if excluded. 2. He relied on the case of **Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR)** and the case of[**Communications Commission of Kenya & 3 Others v. Royal Media Services Limited & 7 Others [2014]**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/kesc/2014/52)**eKLR.** 3. Counsel argued thatthe Application does not disclose the Applicant's direct, identifiable, and legal interest in the subject matter, as the Applicant's claim is personal and tangential to the commercial dispute between the Appellant and the Respondents, and the Applicant therefore, does not meet the threshold for admission as an interested party in light of the prerequisites for such admission. Counsel submitted that the instant dispute centres on the enforcement of a charge, not on matrimonial property rights or spousal consent. 4. Counsel maintained thatthe Applicant's remedy, if any, potentially lies in a separate suit for matrimonial property rights and/or for declarations related to the validity of the charge and subsequent overdraft, and should therefore not interfere with concluded litigation by seeking admission as an interested party at the appeal stage. Counsel contended that the Application is procedurally irregular and impermissible as the Applicant was not a party to the proceedings at the trial court, and her seeking to be enjoined for the first time at the appellate stage would amount to introducing fresh matters, contrary to the principles of appellate jurisdiction. 5. Counsel further submitted that allowing joinder at this stage would set a dangerous precedent and undermine the finality of litigation, as parties are inclined to bring all their claims at the appropriate time and level and the court must discourage piecemeal litigation and interventions after judgments are rendered. Counsel asserted that the application as presently constituted will occasion miscarriage of justice and great prejudice to the Appellant. 6. Counsel urged that the Applicant has not demonstrated to the satisfaction of this Honourable Court the prejudice they are likely to suffer in case of non-joinder, which potential prejudice is merely remote. Counsel contended that the Applicant has also not set out the case and/or submissions it intends to make before the Court, and has equally failed to demonstrate the relevance of those submissions. 7. Counsel further submitted that the Applicant, if admitted as an interested party, is highly likely to make submissions that are a replica of the submissions that will potentially be made by the 1st Respondent, whose case rests on issues of spousal consent and the legitimacy of signatures used while securing the overdrafts. Counsel maintained that by admitting the Applicant as an interested party, duplication of the arguments already before this Honourable Court might result thereby wasting this Honourable Court's precious judicial time. **Determination** 1. Having considered the Application, the rival affidavits, the impugned judgement of the trial court as well as the submissions by the parties, it is my considered opinion that the twin issues that arises for determination are; 2. **Whether a party can be joined as an interested party to a suit at the appellate stage** 3. **Whether Applicant has met the necessary prerequisites for joinder** 4. On the 1st issue for determination, **Order 1 rule 1 of the Civil Procedure Rules** provides as hereunder: **All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged** to exist, whether jointly, severally or in the alternative, **where, if such persons brought separate suits, any common question of law or fact would arise.** 1. Further, Order **1 rule 10(2)** of the said Rules 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.”** 1. Although the Civil Procedure Rules does not make an explicit mention of an interested party, the Order **1 Rule 10 (2) of the Civil Procedure Rules** herein reproduced does give the trial court power to enjoin a party to the suit, “**whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit…**and such a party in my view is one who then can correctly be termed to be an interested party to a suit. 2. In the case of **Kingori v Chege & 3 Others [2002] 2 KLR 243** Nambuye J (as she then was) stated thus; **“…parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit. Necessary parties who ought to have been joined are parties who are necessary to the constitution of the suit without whom no decree at all can be passed. Therefore, in case of a defendant two conditions must be met: (1) There must be a right to some relief against him in respect of the matter involved in the suit. (2) His presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings. A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognisable in the Court of law being an interest, which the Court will enforce.** 1. The guiding principles that emerge from this decision is that in an application for joinder, a party seeking to be joined must demonstrate the following; 2. **That he is a necessary party.** 3. **That he is a proper party.** 4. **That in the case of a defendant there must be a relief flowing from that defendant to the plaintiff.** 5. **That the ultimate order or decree cannot be enforced without his presence in the matter.** 6. **That his presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.** 7. In light of the above, it is clear that a party can be joined at any stage of the proceedings if they are able to satisfy the criteria set out in **Kingori V Chege (supra)**. However, it is important to note that such joinder as envisaged under Order 1 Rule 10(2) seems to suggest that joinder can only be done in proceedings before the same court. However, the question on whether this procedure is applicable at the appellate stage was determined in the case of **Tang Gas Distributors Ltd vs. Said & Others [2014] EA 448** where the court held that; **“the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; 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.”**(emphasis mine) 1. Being guided by the above finding then, I am satisfied that a party may be joined even at the appellate stage as long as they meet the criteria for joinder herein set out in the case and statute law cited. This finding then resolves the 1st issue for determination. 2. On the 2nd issue for determination, from my above summary of the pleadings and submissions, the salient points of the he Applicant’s case is as follows; That he property used as collateral belongs to the 1st Respondent, her husband, and that the same is a matrimonial home; That she has a lawful interest/stake in this suit that seeks to take away my spousal rights in the matrimonial home; That their matrimonial home was used as collateral in a loan advanced to the 2nd Respondent by the Appellant fraudulently without her consent as a spouse; 3. That there have been proceedings that were concluded and that even though the decision was in favour of her husband and their matrimonial home at the lower court, she was not aware of, and she could not have been a party because the same was never brought to her attention. Further, the Applicant asserts that it is at the appeal stage that she has come to know of what has been going on behind her back; That she seeks to protect her interests as a spouse since her rights cannot be properly articulated in her absence; 4. That a loan was advanced to the 2nd Respondent and even further loans against their matrimonial home, without her consent in breach of the established principles of law; That this has been set out as Ground No. 4 in the Memorandum of Appeal and it is question of law that she seeks to help this court fully address hence it is not an introduction of a new matter; That hat if appeal succeeds without her participation, the Appellant will be at liberty to auction their matrimonial home and this order will adversely affect her and the children. 5. Based on the above, it is the Applicant’s submission that she has met all the laid down principles for reasons that she has demonstrated that; The loan application form showed that the loan security, being the suit property was a "family residential home" and that the Appellants in the defence dated 19th February 2015 conceded to this fact; That at **Section 2 and Section 79 (3) of the Land Act** it is very clearly outlined that a spouse indeed has interest/rights over matrimonial property and any charge must be accompanied by their written consent; That the issue of the validity of a charge based on lack of spousal consent can only be canvassed before a commercial court as the charge is a commercial instrument and not in proceedings under the Matrimonial causes Act. 6. On the other hand the salient points of the Respondent’s opposition to the plaintiff’s case are that; The Applicant has not demonstrated a direct, identifiable, and proximate interest in the subject matter of the suit, which is not remote, speculative, or merely academic; That the Applicant has not shown that their participation is necessary to assist the Court in effectually and completely adjudicating upon and settling all questions involved in the matter, and that they will suffer prejudice if excluded; That the instant dispute centres on the enforcement of a charge, not on matrimonial property rights or spousal consent and so the Applicant's remedy, if any, potentially lies in a separate suit for matrimonial property rights and/or for declarations related to the validity of the charge and subsequent overdraft; 7. In addition, it is the Respondent’s contention that the Application is procedurally irregular and impermissible as the Applicant was not a party to the proceedings at the trial court, and her seeking to be enjoined for the first time at the appellate stage would amount to introducing fresh matters, contrary to the principles of appellate jurisdiction; That allowing joinder at this stage would set a dangerous precedent and undermine the finality of litigation, as parties are inclined to bring all their claims at the appropriate time and level and the court must discourage piecemeal litigation and interventions after judgments are rendered. 8. In reaching its determination on this issue, the court stands guided by the decisions in the cases already herein cited and also the following; **In Civicon Limited vs. Kivuwatt Limited and 2 Others [2015] eKLR** in which the court observed 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.”** 1. Under **Rule 2 of**[**the Constitution**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2013/208)**of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, Legal Notice No. 117 of 2013,** also knownas the **Mutunga Rules,** which has also been cited by the Appellant, an interested party as follows: **“a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.”** 1. Further to the above cited, I also find the Supreme Court decision in **Trusted Society of Human Rights Alliance Vs. Mumo Matemu & 5 others, Supreme Court Petition No. 12 2013, [2014] eKLR relied upon by the Applicant to be a proper guide. Therein, the court** held as hereunder: **“(17) Suffice it to say that while an Interested Party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the Court having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom.** **“(18) 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. **Going by the above guidance, I am satisfied that the applicant has sufficiently demonstrated that** demonstrated a direct, identifiable, and proximate interest in the subject matter of the suit, and that the same is not remote, speculative, or merely academic; Further, I am satisfied that she has also demonstrated that **That he is a necessary party; That she is a proper party; That the ultimate order or decree cannot be enforced without her presence in the matter and that her presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.** 2. The above is buttressed by the fact that from my above summation of the salient points, I note that the following primary facts proffered by the Applicant in support of her case have not been denied by the Appellant; That the Applicant is a spouse to the charger; That the suit property is their matrimonial home; That the Applicant resides therein with her children; That she did not give spousal consent to the loan advanced; That as a spouse, the law as provided under Section 2 and Section 79 (3) of the Land Act explicitly requires that her written consent be obtained before their matrimonial property is charged; 3. In light of my above conclusions then it is my finding that the Applicant’s Application has merit and the same is accordingly allowed in its entirety with costs in the cause. **Read Dated and Signed Virtually at BUNGOMA on 9th July 2026** **E. OMINDE** **JUDGE**