[2023] KECA 1480 (KLR)

Lalji & 3 others v Simba Hills Farm Limited & 7 others; Chelugui & 5 others (Applicant) (Civil Appeal (Application) 70 of 2020) [2023] KECA 1480 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KECA 1480 (KLR)

Republic of Kenya

In the Court of Appeal at Eldoret

Civil Appeal (Application) 70 of 2020

F Sichale, FA Ochieng & LA Achode, JJA

December 8, 2023

Between

Sultan Hasham Lalji

1st Appellant

Sultan Hasham Lalji

2nd Appellant

and

Julius Kipkosgei Chelugui

1st Applicant

Philip Mandago………………………………............2Nd Applicant Paul Kipchumba Serem

2nd Applicant

and

Simba Hills Farm Limited

1st Respondent

Abdulaziz Kanji

2nd Respondent

Img Media/Tmpk2Fl__01_Html_F93D87A698F63Edf.Jpg}}Simba Hills Farm Limited

3rd Respondent

Madatally Sidi…………………………….…....….3Rd Respondent James Kimosbei Tuwei

4th Respondent

Madatally Sidi

5th Respondent

James Kimosbei Tuwei

6th Respondent

Isaac Chepsiror

7th Respondent

Sylvester Biwott

8th Respondent

and

Julius Kipkosgei Chelugui

Applicant

Philip Mandago

Applicant

Paul Kipchumba Serem

Applicant

Ezekiel Kipchumba Too

Applicant

Faith Lemiso

Applicant

Stephen Maritim Kimetto

Applicant

(Being an application for joinder by the applicants as interested parties in an appeal from the judgment of the Environment and Land Court at Eldoret (Odeny J), dated 4th March 2020)) In (Eldoret ELC Case No. 71 of 2017)

Ruling

1. Julius Kipkosgei Chelugui, Philip Mandago, Paul Kipchumba Serem, Ezekiel Kipchumba Too, Faith Lemiso and Stephen Maritim Kimetto (the applicants herein), have vide a motion dated January 2, 2023, brought pursuant to the provisions of Rule 77 (1) of the Court of Appeal Rules andArticle 159 (1) (d) of the Constitution of Kenya, sought to be allowed to join these proceedings as interested parties. The applicants further seek leave to file any necessary pleadings and evidence in the appeal.

2. The motion is supported on the grounds on the face of the motion and an affidavit sworn by all the applicants dated February 2, 2013. They deposed inter alia that this appeal emanates from a suit that was filed in the High Court in Eldoret namely; ELC No. 71 of 2017, which suit was filed by Kipkering Arap Sitienei and Kipsondin Arap Kuto who were neither shareholders or Directors of the 1st respondent; that the two individuals have been hoodwinking the courts and testifying as the 1st respondent’s Directors and that the 1st respondent was a private company incorporated for the sole purpose of purchasing land from the appellant.

3. They further deposed that they had the locus to file this application having been duly elected as the directors of the 1st respondent following an extraordinary meeting held pursuant to the orders issued in Eldoret Misc. Application No.E008 of 2021; that they are shareholders and that they live on the suit property; that they represent the interests of over 246 persons and families who not only continue to occupy various portions of the suit property, but were also shareholders of the 1st respondent.

4. The motion was supported by a replying affidavit sworn by (the 4th and 5th respondents respectively), James Kimosbei Tuwei and Isaac Chepsiror on February 21, 2023 who deposed inter alia that the initial Directors were not trustworthy as they failed to pay contributions from the shareholders to the appellant. The applicants assert that they were elected as Directors in the extraordinary meeting held on 6. 04. 2021.

5. When the matter came up for plenary hearing on July 17, 2023, Mr. Clifford Odhiambo, learned counsel appeared for the applicants whereas Mr. McCourt appeared for the appellant. Mr. Nyambegera holding brief for Mr. Kipkemboi appeared for the 1st respondent. Mr. McCourt intimated to Court that the 2nd and 3rd respondents did not participate in the proceedings in the superior court and that the 4th,5th and 6th respondents were represented by the firm of Mr. Chepkwony who was now deceased.

6. It was submitted for the applicants that they had satisfied the grounds for granting of an order for joinder and leave to file pleadings. Reliance was placed on the case of Hamisi Yawa & 36,000 Others v Tsangwa Ngala Chome & 19 Others [2018] eKLR. It was further submitted that the applicants had filed the present application on behalf of over 246 persons and families, who not only continue to occupy various portions of the suit property but were also shareholders of the 1st respondent and that they thus had personal interests/stake in the matters in question and that their presence in these proceedings would enable this Court resolve all the matters in dispute justly and fairly.

7. On the other hand, it was submitted for the appellant that the appellant was neither a member nor a director of the 1st respondent and was therefore not privy to workings of the 1st respondent. Further that the appellant defended the suit in the superior court on the basis that it was validly brought by the 1st respondent and that if the contention by the applicant is that the 1st respondent had no locus, then the appeal filed by the appellant must succeed as the suit was invalid and a non- starter ab initio.

8. Lastly, it was submitted for the 1st respondent that the contention by the applicants that the suit was spearheaded by persons who were not directors was not true as Kipkering Arap Siteinei and Kisondin Arap Kuto appear in the list of directors in the annexure annexed to the applicants’ motion, and that the suit was conducted by directors and shareholders of the 1st respondent namely; the 4th and 6th respondents.

9. We have carefully considered the motion, the grounds thereof, the supporting affidavit, the replying affidavit sworn by the 4th and 5th respondents, the rival submissions by the parties, the cited authorities and the law.

10. The applicants are essentially seeking to be enjoined as interested parties in these proceedings. The gravamen of their application is that the suit (the subject of the pending appeal), was filed by one Kipkering Arap Sitienei and Kipsondin Arap Kuto who were neither shareholders or directors of the 1st respondent and that the applicants being the legally recognized Directors of the 1st respondent, representing the interests of over 246 persons and families who occupy various portions of the suit property and were also shareholders of the 1st respondent ought to be enjoined in the pending appeal.

11. In the case of Attorney General v David Ndii & 73 others (Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR) (9 November 2021) (Ruling), the Supreme Court of Kenya reiterated the guiding principles to be considered in determining an application for joinder of an interested party. It stated;“This court has laid down the guiding principles applicable in determining an application to be enjoined as an interested party in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others SC Petition (Application) No 12 of 2013. The principles were affirmed in the case of Francis Karioki Muruatetu & another v Republic & 5 others (supra) where the court 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 interested party 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” (Emphasis ours).

12. Again, in Hamisi Yawa & 36,000 Ohers v Tsangwa Ngala Chome & 19 Others [2018 eKLR, this Court set out the principles to be considered in considering whether to enjoin a person as a party to proceedings in the following terms;“In as much an application by a party to be joined to any proceedings should not be restricted, there are criteria to be met by the party intending to be joined. The criteria which are in no way exhaustive include; The applicant must demonstrate that it would be desirable for him/her to be added as a new party and that his/her presence would enable court to resolve all the matters in the dispute. 1. The joinder will not prejudice the other parties.

2. The joinder will not vex the parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.”

13. Applying the above principles to the instant application, we are not satisfied that the applicants have made out a case to warrant their joinder in the intended appeal for the following reasons; firstly, the applicants were not parties in the proceedings before the High Court and they have admitted as such. Secondly, the contention by the applicants that the suit was filed by Kipkering Arap Sitienei and Kipsondin Arap Kuto who were neither directors nor shareholders of the 1st respondent is not factual as a document from the Registrar of Companies annexed to the applicants’ motion and marked as “SH-4” indicates that the said two persons are shareholders of the 1st respondent company. Additionally, the mere fact that the applicants were shareholders when the suit was filed and that now they had become directors in our view is really neither here nor there and it matters not that they have now become Directors. Indeed, if the applicant’s position is that the two did not have the locus to file suit, the subject of the appeal, then as pointed out by McCourt there would be no valid suit to anchor an appeal. It follows therefore that if the suit was a non-starter, then the appeal itself must fall by the wayside. If this is the case, there would be no appeal to be enjoined in.

14. In the case of Communications Commission of Kenya and 4 Others vs Royal Media Services Limited & 7 Others Petition No. 15 of 2014 [2014] eKLR the Supreme Court of Kenya stated as follows in declining to enjoin a party to a suit;“The applicant now seeks to be enjoined in this matter, even though it was neither a party at the High Court nor at the Court of Appeal. The applicant has not demonstrated how the ends of justice would better be served by enjoining it in the appeal…”

15. Ultimately therefore and from the circumstances of this case we are unable to see how the ends of justice will be served by enjoining the applicants as interested parties in these proceedings at this stage.

16. It is in view of the above that we hold and find the applicants motion dated January 2, 2023, to be devoid of merit and accordingly dismiss the same in its entirety with no order as to costs.

17. We so order.

DATED AND DELIVERED AT ELDORET THIS 8TH DAY OF DECEMBER, 2023. F. SICHALE.............................JUDGE OF APPEALF.A OCHIENG.............................JUDGE OF APPEALL.A ACHODE.............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR