[2022] KEHC 13919 (KLR)

Mohamed v Abdi & another (Civil Appeal 185 of 2020) [2022] KEHC 13919 (KLR) (Civ) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13919 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 185 of 2020

CW Meoli, J

October 13, 2022

Between

Mohamed Saleh Mohamed

Appellant

and

Osman Ali Abdi

1st Respondent

Asha Hirsi Hassan

2nd Respondent

(Being an appeal from the ruling of Hon L Gicheha (CM) delivered on 30th April, 2019 in Nairobi Milimani CMCC No 3116 of 2018)

Judgment

1. This appeal emanates from the ruling delivered on April 30, 2019 in Nairobi Milimani CMCC No 3116 of 2018. In 2017, Mohamed Saleh Mohamed, the Plaintiff in the lower court (hereafter the Appellant) instituted a suit in the Environment and Land Court, (later transferred to the Chief Magistrate’s Court at Milimani and designated CMCC No 3116 of 2018) against Osman Ali Abdi ,the Defendant in the lower court (hereafter the 1st Respondent) seeking judgment by way of declarations that the Appellant is solely entitled to the ownership and possession of Apartment B5 in Cegag Apartments and that the 1st Respondent held the said apartment in trust for the Appellant.

2. The Appellant also sought a mandatory order directing the 1st Respondent to transfer the said apartment to the Appellant in default of which the Deputy Registrar of this Court would be authorized to execute the transfer in favour of the Appellant, and further, an order compelling the 1st Respondent and or his agents to immediately deliver up title documents, vacant possession of the premises and to transfer the title documents to the Appellant; a permanent injunction restraining the 1st Respondent himself or his agents from charging, disposing, leasing and interfering with the said apartment; an order compelling the 1st Respondent to remit all the rental income collected over the years; general damages and ; special damages.

3. It was averred in the plaint that in 2010 the Appellant and 1st Respondent had entered into an agreement for the purchase by the Appellant of Apartment B5 at Cegag Apartments (hereafter the suit property) then under construction by the 1st Respondent at the cost of USD 48,000. 00. That it was agreed that the 1st Respondent would upon completion of the development grant the Appellant full possession and deliver up to him all title documents to the suit property. It was further averred that the Appellant duly paid the purchase price but that upon completion of the development, the 1st Respondent had in breach of trust and his contractual obligations inter alia refused and or failed to procure the title documents in favour of the Appellant and had proceeded to let out the premises thereby fraudulently converting rental income in respect of the suit property.

4. On May 25, 2017 Asha Hirsi Hassan ­, the intended Interested Party in the lower court (hereafter the 2nd Respondent) filed a motion of even date seeking to be enjoined as an Interested Party in the matter. The motion was expressed to be brought among others under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Order 1 Rule 10(2) & (4), Order 2 Rule 14 and Order 51 of the Civil Procedure Rules on grounds on the face of the motion as amplified in the supporting affidavit of the 2nd Respondent.

5. The affidavit was to the effect that at all material times the 2nd Respondent was married to the Appellant and cohabiting in Norway as husband and wife and were blessed with five issues. She deposed that on or about April 7, 2010 she informed the Appellant of her intention to purchase a residential apartment in Nairobi and requested him to introduce her to a developer and or property agent in Nairobi. That the Appellant introduced her to the 1st Respondent who at the time had apartments for sale apartments on an off-plan basis; that upon negotiating with the 1st Respondent, she settled on the suit property erected on LR No 209/3271/28 at the price of USD 45,000. 00 payable in three installments which she effected through IFTIN Money Bureau where the Appellant served as a manager and; that payments were made in the Appellant’s name solely because he was her trusted husband.

6. She further deposed she solely undertook to pay the purchase price and any addition costs relating to the purchase of the apartment but subsequently the marriage had broken down and the parties separated. That the Appellant had subsequently instituted a suit seeking to transfer the suit property into his name and the dispute between the couple regarding the suit property had been reported to police and handled by clan elders in Nairobi who ruled in her favour. Thus, she swore that it was in the interest of justice that her motion be allowed as prayed.

7. The Appellant filed a replying affidavit in opposition to the motion the parties thereafter filed written submissions. In a ruling delivered on April 30, 2019 the trial court allowed the 2nd Respondent’s motion, thus provoking the instant appeal which is based on the following grounds:“1. That the learned Chief Magistrate erred in law and in fact in allowing the Interested Party to be enjoined as an Interested Party and awarding costs to the Interested Party as prayed in the application dated May 25, 2017 to the detriment of Appellant herein despite the lack of an identifiable interest and or evidence.2. That the learned magistrate erred in law and in fact in failing to appreciate that the interested party intends to introduce new issues and sought actual remedies contrary to the legal position of the interested party.3. That the learned Chief magistrate erred in law and in fact in prematurely delving into merits of the suit by determining that the Interested Party has an identifiable interest, even though existence of a prima facie contractual relations was not demonstrated.4. That the learned magistrate erred in law and in fact in failing to address the issues of evidence presented by the Appellant.5. That the learned chief magistrate erred in law and in fact by relying on a document written in Norwegian language as proof of pay slips despite the documents not being translated and authenticated as required by law and furthermore the documents are not even pay slips.6. That the learned chief magistrate erred in law and in fact by relying on a purported police report that is not verifiable. The purported police report is not certified and lacked the basic standard information such as the rank of the officer who received the statement or the precinct or station where the report was made. Moreover even the photocopy police report attached has none of the aforementioned details in this paragraph itself to even warrant any reliance on the document.7. That the learned magistrate erred in law and in fact in relying on an ex parte determination by strangers to the Appellant purporting to be elders. Furthermore the determination was made in the absence of the Appellant. The learned magistrates’ reliance on the document and the proceedings is contrary to the rules of natural justice and effectively ratified the decision therein hence causing a miscarriage of justice.8. That the learned magistrate erred in law and in fact in awarding costs to the Interested party.9. That the learned magistrate erred in law and in fact in failing to exercise her discretion judiciously in determining the application and failed to apply the rules of natural justice and evidence to accord the Appellant a fair hearing10. That in all the circumstances of the case, the learned magistrate failed to render justice to the Appellants.” (sic)

8. The appeal was canvassed by way of written submissions. Counsel for the Appellant cited the decision in Kenya Methodist University v Mohamed Fugicha & 3 Others [2019] eKLR to submit that the 2nd Respondent’s joinder introduces new issues and a new cause of action in respect of the ownership of the suit property to the existing substantive suit. It was asserted a party seeking to be enjoined as an interested party in a suit must demonstrate a patently identifiable interest. In faulting the income evidence supplied by the 2nd Respondent in support of her joinder motion, counsel pointed out a part of it was in Norwegian language, which is not a language of the court under Section 86 of the Civil Procedure Act. He asserted that the untranslated document in Norwegian language could not properly be relied on by the court as it did in the ruling.

9. Concerning the evidence on reports to police and the purported proceedings before the clan elders, counsel asserted that the former was unauthenticated whereas the latter was conducted by strangers, in the absence of the Appellant and a determination prejudicial to the Appellant made. Counsel complained that the trial court referred to documents purportedly conferring ownership of the suit property upon the 2nd Respondent, contrary to the rules of natural justice. Concerning costs, it was submitted that costs are awarded at the discretion of the court which must be exercised judiciously considering the circumstances of each case. Counsel argued that the 2nd Respondent was not dragged to court but rather invited herself to the suit by way of her joinder motion and was therefore not entitled to costs. In conclusion it was submitted that the 2nd Respondent had no legitimate claim to the subject matter and the appeal ought to be allowed with costs to the Appellant.

10. The 2nd Respondent agreed with the trial court’s findings and in so doing condensed the Appellant’s grounds of appeal into the single issue whether the 2nd Respondent had demonstrated an identifiable and or legal interest in the proceedings before the lower court. While placing reliance on the definition of interested party as stated in TheConstitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (commonly known as the Mutunga Rules) , Black’s Law Dictionary, 9th Editions, Pg 1232, and several decisions including Kenya Medical Laboratory Technicians and Technologists Board & 6 Others v Attorney General & 4 Others [2017] eKLR, and Kuguru Food Complex Ltd v National Land Commission & Another[2016] eKLR counsel argued that the 2nd Respondent fulfilled the requirements for successful motion for joinder of an interested party. Reiterating the material undisputed background that the Appellant and 2nd Respondent were a married couple at the time of the transaction relating to suit property and that the dispute between them regarding the suit property had been referred to clan elders and police without resolution, it was asserted that unless the 2nd Respondent was enjoined she was likely to be prejudiced.

11. Responding to the Appellant’s submissions on the validity of the 2nd Respondent’s evidence before the lower court, counsel argued that for purposes of the joinder motion, the trial court did not need to determine the merits of the interested party’s case and that all that fell for determination was whether the party seeking joinder has demonstrated sufficient interest in the case, which hurdle the 2nd Respondent had successfully surmounted. Counsel disputed that the 2nd Respondent was by her joinder seeking to introduce new issues or a new cause of action to the pending suit and that her contention together with her co-Respondent related to the same question, namely, whether the suit property ought to be transferred to the Appellant as prayed in the plaint. Moreover that, the 2nd Respondent did not seek any substantive reliefs in the said suit and therefore the Appellant’s objection in that regard cannot hold. In conclusion it was submitted that the 2nd Respondent had discharged the requisite burden of proof and the appeal ought to be dismissed with costs.

12. The 1st Respondent indicated to this court through counsel that he opted not to participate in the instant proceedings.

13. The duty of this court as a first appellate court is to re-evaluate the evidence adduced in the lower court and to draw its own conclusions, but always bearing in mind that it did not have opportunity to see or hear the witnesses testify. See Peters v Sunday Post Ltd (1958) EA 424; Selle and Anor v Associated Motor Boat Co Ltd and Others (1968) EA 123; William Diamonds Ltd v Brown [1970] EA 11 and Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278.

14. The Court of Appeal stated in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR that:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

15. The court’s assessment, upon perusing the record of appeal as well as the original record and having considered the material canvassed in respect of the appeal, is that the appeal turns on the question whether the trial court was entitled to allow the joinder motion before it. The learned magistrate in allowing the 2nd Respondent’s motion expressed herself in part as follows:“I have considered submission by both parties. It is not in dispute that the Plaintiff and the Applicant were husband and wife. The Applicant has annexed documents which she states are pay slips to prove that she was capable of purchasing the said apartment. She states she sent this money through her husband who was a manager of IFTN Express. She has even reported him to the elders but he failed to attend and it was declared the apartment was hers and even to the police.The Plaintiff states that this matter should be dealt in a different forum, however it should be understood she is not claiming the property as matrimonial property but as a property she purchased and would want it registered in her name.I find that the documents she has annexed has proven she has an interest in the suit property and that the interest is identifiable. She alleges to have purchased the said property and this would be the best forum for the ownership of property to be established as the prayers sought are for transfer of property to the rightful owner.Finally, if she is enjoined it will avoid multiplicity of suits as she does not need to file another suit claiming ownership as the issues will be dealt with in this suit.I therefore find that the Applicant’s application has merit and the application dated 25/5/2017. The intended interested party to file and serve her pleadings within 21 days from today.” (sic)

16. The application before the lower court was expressed to be brought under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Order 1 Rule 10(2) & (4), Order 2 Rule 14 and Order 51 of the Civil Procedure Rules. Order 1 Rule 10(2) of theCivil Procedure Ruleswhich provides that: -“(2) 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.”

17. Further, Section 1B of the Civil Procedure Act provides that;-“(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology.”

17. Section 3A of the same Act provides;-“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

18. That said the grant or refusal of an application for joinder involves the exercise of a discretion. However, such discretion must be exercised judicially and upon reason, rather than arbitrarily or capriciously. The Court of Appeal in Mashreq Bank PSC v Kuguru Food Complex Limited [2018] eKLR stated;-“This Court ought not to interfere with the exercise of a Judges’ discretion unless it is satisfied that the Judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of discretion and occasioned injustice. Conversely, a court exercising judicial discretion must be guided by law and facts and not ulterior considerations. This much was stated by the Court of Appeal in the case of Shah v Mbogo (supra):“A court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising this discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and as a result there has been injustice”.See; United India Insurance Co Ltd v East African Underwriters (K) Ltd [1985] EA 898”. [Emphasis added]

19. The Supreme Court of Kenya in Attorney General v David Ndii & 73 Others(Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR) offered guidance on the applicable principles in an application of joinder by an interested party. Reiterating its earlier decisions touching on the question, the Court stated that: -“An Applicant to be enjoined as an Interested Party has to satisfy this Court that it has met the legal requirements for joinder………..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 Added).

20. In the case cited, Francis Karioko Muruatetu & Another v Republic & 5 others [2016] eKLR the Supreme Court had also spelt out the respective positions of parties in a suit where an interested party had been enjoined or is seeking to be enjoined: -“[41]…We are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the Court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the Court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us” ….

21. The Supreme Court exhorted that the joinder or proposed joinder of an interested party should neither involve nor entitle such a party to raise new issues or cause of action not already pleaded by the primary parties in the suit, before proceeding to state that:"(42)…One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether new issue to be introduced before the Court” …. (Emphasis added).See also Kenya Medical Laboratory Technicians and Technologists Board & 6 Others v Attorney General & 4 Others [2017] eKLR.

22. Black’s Law Dictionary, 9th Edition, defines ‘Interested Party’ at pg 1232 as: -“A party who has a recognizable stake (and therefore standing) in a matter”.

23. In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others SC Petition (Application) No 12 of 2013; (2014) eKLR the Supreme Court stated that:“(18) Consequently, 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.”

24. A key relief in the Appellant’s plaint was a declaration to the effect that he is solely entitled to ownership and possession of the suit property. The 1st Respondent had yet to file a statement of defence in the suit before the Court below. For her part, the 2nd Respondent had not instituted formal legal proceedings against the Appellant, although it is undisputed that prior to her joinder motion, she had lodged a complaint against the Appellant before clan elders who determined the matter ex parte. As rightly noted by the trial court in its ruling, neither party to the instant proceedings disputed the fact that the Appellant and 2nd Respondent were husband and wife in the period when the transaction relating to the purchase of the suit property occurred.

25. What the 2nd Respondent contended in her joinder motion was that she had a personal interest and or stake that is identifiable in the said property on the basis that she negotiated the purchase of the suit property from the 1st Respondent who had been introduced to her by the Appellant and paid through the said Appellant a sum of USD 45,000. 00 in three installments. She explained that the payments were made through the Appellant’s name solely because of their relationship as spouses and the fact that the Appellant was a manager in IFTIN, the money transfer company used to transmit payments.

26. The Appellant’s list of documents dated March 24, 2017 filed together with the plaint contains copies of money transfer vouchers for transfers through a company known as IFTIN by the Appellant in favour of the 1st Respondent dated December 6, 2010; April 9, 2010; June 4, 2011; November 22, 2011; and October 14, 2011. Surprisingly, the Appellant did not exhibit these documents in his replying affidavit sworn to oppose the joinder motion. Although I agree with the Appellant that the 2nd Respondent’s objection that the evidence exhibited as annexure “AHH1” in her supporting affidavit to the joinder ought to have been translated for use in the trial court, because of the unique circumstances of this case and admitted relationship between the parties, the omission was not enough to defeat the 2nd Respondent’s joinder motion.

27. Besides, at the interim stage all the trial court was required to see is not whether the 2nd Respondent had a case that would necessarily succeed at the trial, but whether cumulatively, the material presented by the said applicant demonstrated her personal interest or stake in the matter that was clearly identifiable and proximate enough, and not merely peripheral.And in addition, that the 2nd Respondent had shown the prejudice to be suffered by the intended interested party in case of non-joinder. Having reviewed the evidence before it, the trial court was satisfied, and expressly pronounced itself on the former issue, and impliedly regarding the latter. The court correctly identified the key issue raised by the suit to be who between the Appellate and the 2nd Respondent was the lawful person entitled to the ownership of the suit property.

28. Reviewing the material before the court, this court finds no reason to fault the trial court for reaching the conclusions it did except to observe that even if the 2nd Respondent’s documentary evidence were as weak as asserted by the Appellant, the admitted marital relationship between the Appellant and 2nd Respondent was itself prima facieevidence of the 2nd Respondent’s interest and stake in the suit property and possible prejudice if she was not allowed to participate in the suit.

29. The complaint that the 2nd Respondent was seeking to introduce a new cause of action holds no water; hers was to bring before the court her interest in the matter but the primary cause of action was not thereby altered. As held in Francis Karioki Muruatetu & Another (supra):“[T]he issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues, or introduce new issues for determination by the Court….” [Emphasis added]

30. The dispute between the Appellant and 2nd Respondent appears in addition to raise a matrimonial property question, but applying the test set out in above this court is not persuaded that the learned magistrate erred in enjoining the 2nd Respondent. Not doing so in my view would have imperiled the 2nd Respondent’s asserted interests and, as the Court rightly observed resulted in multiplicity of suits as the said applicant sought elsewhere for a remedy to address her grievance against the Appellant. Suffice to say that it is beyond argument that the suit before the lower court involves the question of the Appellant’s asserted exclusive ownership of the suit property to which the 2nd Respondent also stakes a claim, and the Court cannot think of a more deserving case of joinder.

31. In view of the foregoing, the court finds that the joinder motion was properly allowed and the appeal to be without merit. The appeal is accordingly dismissed. The costs of the joinder motion were properly allowed, on the principle that costs follow the event. Similarly, the costs of this appeal are awarded to the 2nd Respondent.

32. The court directs that the lower court file be immediately returned to the CM’s Court at Milimani so that the parties can file any outstanding pleadings and complete the process of compliance with Order 11 of the Civil Procedure Rules and thereafter proceed to set down the matter for hearing at the earliest opportunity.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 13TH OCTOBER 2022. C.MEOLIJUDGEIn the presence of:For the Appellant: Mr. JamaFor the 1st Respondent: N/AFor the 2nd Respondent: Ms. AsashaC/A: Caro