[2022] KEHC 97 (KLR)

Muchemi v Williams & Kennedy Ltd & another; Gicharu (Interested Party) (Civil Suit 2459 of 1997) [2022] KEHC 97 (KLR) (Commercial and Tax) (11 February 2022) (Ruling)

Neutral citation: [2022] KEHC 97 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 2459 of 1997

A Mshila, J

February 11, 2022

Between

Juma Muchemi

Plaintiff

and

Williams & Kennedy Ltd

1st Defendant

Official Receiver and Provisional Liquidator Rural Urban Credit Finance Ltd (In Liquidation)

2nd Defendant

and

David Kimani Gicharu

Interested Party

Ruling

1. The Applicant filed a Notice of Motion Application dated 15th October 2021 under Sections 1A, 1B and 6 of the Civil Procedure Act and Order 1 Rule 10 of the Civil Procedure Rulesfor orders that;a.Pending the hearing and determination of this Application, there be an order of staying further proceedings in this matter.b.The Court joins the Proposed Interested Party, David Kimani Gicharu, as an Interested Party in these proceedings.c.The Plaintiff’s suit and proceedings herein be stayed pending the hearing and determination of the suit in Nrb ELC Case No. 348 of 2019 – David Kimani Gicharu versus Peter Burugu, Jumchem Healthcare Limited and Chief Lands Registrar.

2. The Application is supported by the grounds on its face and by the Supporting Affidavit sworn on even date by David Kimani Gicharu who stated that he had filed ELC No.348 of 2019 in which he seeks to be declared the legal owner of all parcels of land known as Land Reference No. 5989/56-61,5989/ 72-90 as well as 5989/5/3, 5989/5/4 and 5989/231-243.

3. Further, all the parties herein save for the 1st Defendant are also the same parties in ELC No. 348 of 2019 which is going to determine the issue of ownership of the Suit Properties herein.

4. Thus, the Applicant is a necessary party in this matter as any orders given by the Court on the issue of the title, ownership and transfer of the suit properties by the 1st defendant to the plaintiff will adversely impact on his title, right and interest over the same properties.

5. The 1st defendant/Respondent filed Grounds of Opposition dated 22nd November 2021 in response to the present Application and stated that the Application is meant to cause unreasonable delay to the determination and conclusion of the suit herein.

6. In addition, the Application is a belated attempt by the Applicant to vary consent orders recorded on 12th July 2000 to wit the 1st defendant is to remain in possession of the suit property.

7. The parties were directed to canvass the application by filing and exchanging written submissions. Hereunder are the parties rival submissions;

Applicant’s Case 8. The applicant submitted that he is a necessary party to the suit since he is the rightful owner of the suit property and has staked his claim therein; the specific performance orders sought in this suit stand to affect the proposed Interested Party’s rights and interests for if the same is granted without having been heard, the court will not have accorded an opportunity to correctly dispense justice in the matter.

9. The Applicant relied on the case of Trusted Society of Human Rights Alliance versus Mumo Matemu & 5 Others [2014] eKLR in which the Supreme Court defined who an Interested Party is.

10. By virtue of the interest held by the Applicant in the suit property herein, the ultimate order or decree cannot be enforced without his presence in the matter and further his presence is necessary to enable the court effectively and completely adjudicate upon the questions involved in the suit.

11. Further, it was the Applicant’s submission that he stands to suffer substantial harm and prejudice if he is not enjoined in these proceedings and this would be in breach of his constitutional right to own property.

12. On whether the plaintiff’s suit and the proceedings herein should be stayed pending the hearing and determination of the suit in ELC No. 348 of 2019, the Applicant stated that in the latter case he is seeking to be declared the legal owner of all those parcels of land known as Land Reference No. 5989/56-61, 5989/72-90 as well as 5989/5/3, 5989/5/4 and 5989/231-243.

13. That once the ownership is determined in ELC No. 348 of 2019, in which the Plaintiff and the Defendants save for the 2nd Defendant are all parties, then the subject matter of the suit herein shall have been exhausted forthwith.

14. The issue of ownership takes precedence since it would effectively determine the validity of the transfer that the plaintiff wishes to enforce as against the defendants herein, by seeking an order of specific performance.

15. The respondents herein stand to suffer no prejudice as the Order by Lady Justice Bor dated 23rd January 2020 directed that the status quo regarding the suit properties be maintained pending the hearing and determination of ELC No. 348 of 2019.

Plaintiff’s Case 16. The plaintiff submitted that the proposed Interested Party’s Application is made in bad faith and therefore it ought to be dismissed. In her affidavit of 18th October 2021 Mrs. Juma Muchemi had deponed to the fact that in her Defence dated 4th August 2020 in ELC No. 348 of 2019 served upon the present Proposed Interested Party she disclosed the existence of the present suit; and that was more than one (1) year ago.

17. Article 159 (2) (b) sets out one of the cardinal imperatives that must inform the courts and tribunals in the dispensation of justice in the words; - “Justice shall not be delayed”; this constitutional pedestal is phrased in mandatory terms “shall not” and invited the court not to permit the Proposed Interested Party’s application that is intended to delay justice to the parties.

18. Section 1A of the Civil Procedure Act Cap 21 reinforces this constitutional paradigm by requiring of all parties to proceedings to be guided by the overriding objective of ensuring “just, expeditious (emphasis ours) resolution of the civil disputes” which fact is restated in Section 1B (d) thereof as “…the timely disposal of the proceedings…”

19. The Proposed Interested Party’s Application goes against all these statutory requirements and no explanation has been given why it took the applicant 24 years to make the Application or at least one (1) year granting the applicant the presupposition that the first time that he knew about this suit was when he was served with the Defence in ELC 348/2019 two years ago.

20. The second substantive prayer by the Proposed Interested Party is that of seeking stay of the present proceedings. The prayer offends the clear provisions of Section 6 of the Civil Procedure Act Cap 21 that injuncts the court in no uncertain terms not to proceed with a matter that is directly and substantially in issue in a “…previously instituted suit…” Going by the reading of this section it is case no. ELC No. 348 of 2019 filed 22 years after the present suit that ought to be stayed pending the determination of the instant case.

21. Additionally, the prayer does not meet the threshold set out by various cases on the grant of prayers for stay of proceedings; for an applicant to succeed he must demonstrate three things as set out by Ringera J (as then was) in Global Tours & Travels Limited in Nairobi H.C. Winding Case No. 43 of 2000.

22. The plaintiff prayed that the Proposed Interested Party application be dismissed with costs. His assertion that he will have been driven away from the seat of justice is a red herring meant to give the impression to the Court that the Applicant will be left hopelessly without any remedy.

1st Defendant’s Case 23. The defendant submitted that the Proposed Interested Party has not met the threshold for joinder as an interested party for the reasons that the dispute pending before the Court is anchored on specific performance whereby the plaintiff seeks to have the Court compel the 1st defendant to honour the terms of the Agreement for Sale dated 23rd April, 1993. Further, the purported Interested Party was not a purchaser and neither was he the vendor in the said Agreement as such no useful purpose will be achieved by his joinder.

24. The alleged Interested Party claims that he is the legal owner of the suit property; a claim he is making twenty-eight (28) years after the agreement was executed and over twenty-four (24) years since the present suit was filed and therefore it is a non-starter.

25. The defendant relied on the case of Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR where the Supreme Court set out the threshold for enjoinment of a party as an Interested Party. The Court also noted that enjoinment is not as of right but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court.

26. On whether or not the proposed interested party has met the threshold for stay of proceedings, the defendant submitted that the subject matter of the present suit and the Proposed interested party's suit to wit ELC 348 OF 2019 are different in that one deals in specific performance and the latter is anchored on the validity of a title and/or ownership of the same.

27. Secondly, the jurisdiction in both Courts is at variance as stipulated under Articles 165 and 162 of the Constitution and by the Supreme Court decision of Republic —vs- Karisa Chen go & 2 Others (2017) eKLR, the High Court is not the Environment and Land Court and the Environment and Land Court is not the High Court; the suits ought to be pending before two courts having similar jurisdiction which is not the case here.

28. The Proposed Interested Party has no claim and/or interest over the suit property neither does he have any role to play in the proceedings herein; the Court has the right to balance the competing interests of the parties herein; the present suit was filed in the year 1997, over twenty —four (24) years ago and the plaintiff testified in the year 2014, about seven (7) years as such the parties have the right to have the present suit heard and determined to its conclusion. The defendant urged the Court to dismiss the Application.

Issues For Determination 29. Having considered the application, the responses and the written submissions by the respective parties, the Court has framed the following issues for determination;a.Whether the proposed Interested Party should be joined in these proceedings as an Interested Party?b.Whether an order of staying of the proceedings should issue?

AnalysisWhether the proposed Interested Party should be joined in these proceedings as an Interested Party; 30. The applicable law if found at Order 1 Rule 10(2) of the Civil Procedure Rules, which providesthat;“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.”

31. Whereas, the Black's Law Dictionary 9thEdition, page 1232defines an interested party as;“A party who has a recognizable stake (and therefore standing) in the matter"

32. The Black’s Law Dictionary, 9th Edition defines a “Necessary Party” as being“A party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings”

33. In Communications Commission of Kenya And 4 Others –vs- Royal Media Services Limited & 7 Others Petition No. 14 OF 2014 [2014] eKLR where the Court pronounced itself on who an Interested Party is and held as follows:“In determining whether the applicant should be admitted into these proceedings as an interested party, we are guided by this Court’s decision in the Mumo Matemo case where the court (at paragraphs 14 and 18) held:“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. Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:(i)Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;(ii)Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;(iii)Joinder to prevent a likely course of proliferated litigation.We ask ourselves the following questions:a)what is the intended party’s state and relevance in the proceedings andb)will the intended interested party suffer any prejudice if denied joinder.?”

34. The Applicant argued that he is a necessary party to the suit since he is the rightful owner of the suit property and has staked his claim therein. Further that, the specific performance orders sought in this suit stand to affect the proposed Interested Party’s rights and interests.

35. It is imperative to take note that the present suit was filed over 25 years ago. The suit is part-heard as the plaintiff testified and closed his case on 30th June 2014. It is not in dispute that the Applicant was also aware of the present suit.

36. The present suit is based on a Sale Agreement between the plaintiff and the 1st defendant dated 23rd April 1993 and it therefore follows that Proposed Interested Party was not a party to the transaction that necessitated the present suit.

37. The present suit is one of specific performance and joinder of the applicant in the suit will not result in the complete settlement of all the question involved in the current proceedings.Whether an order of staying of the suit and proceedings should issue;

38. The Applicant also sought an order for stay of the Plaintiff’s suit and proceedings thereof.

39. The applicable law is found at Section 6 of the Civil Procedure Act which provides as follows;“Stay of suit - No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

40. The Applicant’s suit in ELC No. 348 of 2019 is different from the suit herein, in that the proceedings are not between the same parties in both cases. Further, the plaintiff in the present suit seeks specific performance from the defendants while the Applicant in ELC No. 348 of 2019 seeks a validity of title.

41. This position was reiterated in the case of Meridian Medical Centre v National Hospital Insurance Fund[2015] eKLR where the Court stated;“Section 6 of the Civil Procedure Act is clear that the matter ought to be stayed where the parties are the same or are litigating under the same title in a similar matter that is directly or substantially in issue in any case before another court that is competent to hear and determine a matter. Though the matters in this court and the Anti-Corruption Court touched on similar issues, the court was not satisfied that either of the cases in the respective courts would have an impact on each other. Each court would be required to determine the case depending on the evidence that would be placed before it.There was no doubt in the mind of this court that awaiting the hearing and determination of the Anti-Corruption case that involves many other unrelated parties would only embarrass the fair trial of this matter which would be contrary to the provisions of Sections 1A and 1B of the Civil Procedure Act that stipulate that the overriding objectives of courts, parties and their advocates is to facilitate the expeditious disposal of all disputes before the court.

42. From the foregoing, it is clear that the Applicant has not demonstrated to the satisfaction of the court that there is a nexus between the two suits to warrant an order of stay of the proceedings.

43. In the Court’s view, nothing stopped the Applicant from seeking to be joined as an Interested Party prior to pursuing his case in ELC No. 348 of 2019. There is clear mischief by the Applicant seeking to be joined as an Interested Party as well as seeking a Stay of Proceedings when the suit has already been part heard and the defendant’s case is scheduled for hearing.

44. The Applicant has not established sufficient cause to the satisfaction of the Court that it is in the interest of justice to grant the orders sought.

Findings And Determination 45. For the fore-going reasons this court makes the following findings and determinations;i.This court finds that the application to enjoin the Proposed Interested Party, David Kimani Gicharu, as an Interested Party in these proceedings is devoid of merit and it is hereby disallowed.ii.The application seeking stay of the instant suit and proceedings herein pending the hearing and determination of the suit in Nrb ELC Case No. 348 of 2019 – David Kimani Gicharu versus Peter Burugu, Jumchem Healthcare Limited and Chief Lands Registrar.is found lacking in merit and it is hereby disallowed.iii.The application is found to be devoid of merit in its entirety and it is hereby dismissed;iv.Each party shall bear their own costs of this application.Orders Accordingly

DATED, SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 11THDAY OF FEBRUARY, 2022. HON. A. MSHILAJUDGEIn the presence of;Mr. Mutiso for the Plaintiff/RespondentMuriithi holding brief for Omutimba for the 1st defendantOmondi holding brief for Kenyatta for the Applicant/Interested partyNo appearance for the 2nd defendantLucy------------------------Court Assistant