[2023] KEELC 21976 (KLR)

Nalyanya v Opati; Wepukhulu (Interested Party) (Environment & Land Case E007 of 2023) [2023] KEELC 21976 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21976 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment & Land Case E007 of 2023

EC Cherono, J

November 30, 2023

Between

Richard Makhoka Nalyanya

Applicant

and

Peter Kang’ashi Opati

Respondent

and

Margaret Nasibwodi Wepukhulu

Interested Party

Ruling

1. By a Notice of Motion dated 17th May,2023, the Interested Parties seek the following orders:a.Spentb.Spentc.That Margaret Nasibwondi Wepukhulu be enjoined as an interested party in this suit.d.That this suit be consolidated with Bungoma ELC Case No. 5 of 2023e.Costs.

2. The Application is supported by the Affidavit of the proposed Interested Party who has deposed that she is the wife of the Respondent herein having been married in 1974 under Luhya customary rites and solemnized their marriage on the 1/5/2004. It was stated that having been in gainful employment she pulled resources together and assisted in the purchase of land parcel number East Bukusu/South Kanduyi/7676 (‘the suit property’) where together with the Respondent they have constructed their matrimonial home and interred the remains of two of their children.

3. It was further deposed that in the year 2022, she discovered that the Respondent had sold the suit property vide an agreement dated 12/10/1999 without her consent prompting her to lodge a restriction over the property. She averred that she instituted a case against the Applicant and the Respondent who have consented to the current suit thus threatening her rights over the suit property in Bungoma ELC Case no. 5 of 2023.

4. In response, the Respondent deposed that he sold the suit property to the Applicant in the year 1999 and was paid the final balance on the consideration on 31/8/2021. He further stated that the Applicant thereafter disappeared only to return to claim his land in the year 2022 when he visited him at his Naitiri residence seeking to have the Land Control Board Consent taken out and the property transferred to his name. He averred that the Interested party who is his wife objected to the sale and transfer claiming it was matrimonial property and that they had buried their children there. The Respondent argued that the Applicant had not developed the land save for a small extension from what he had done. Lastly, he deposed that at the time of the sale, he did not know that he ought to have involved his wife.

5. The Applicant in response deposed that the application was malicious and merely meant to delay his efforts to have the suit property registered in his name. He averred that he purchased the suit property in the year 1999 and that the same could not be the interested party’s matrimonial property because he took vacant possession upon purchase to date having paid the entire consideration and developed it extensively. He further stated that the suit land parcel is not the matrimonial home of the interested party and to the best of his knowledge, the interested party resides at Naitiri scheme. He also stated that there were no graves in the suit property as claimed.

6. The Applicant further deposed that the Respondent and the proposed Interested party solemnized their marriage in the year 2004, way after he had purchased the suit property in 1999 when spousal consent was not a requirement. It was stated that the current suit was concluded by a consent executed between the parties dated 9/5/2023 and there was no legal basis to enjoin the Interested Party or stay the proceedings. It was averred that the Applicant has developed the suit property to the extent provided by the proposed Interested Party in the photos attached to her application. The Applicant stated that he read mischief in the behaviour of the Respondent and the Interested Party who in his view seem to be in collusion to defeat his rights of the suit property.

7. In her supplementary affidavit, the interested Party stated that the suit property was acquired jointly between herself and the Respondent during the subsistence of their marriage, hence the same was protected by the land laws then and now in force. She further deposed that the honourable Court had not yet adopted the consent as its order and thus the current application was proper. She denied the allegations of colluding with the Respondent and averred that her intention is only to protect her interest over the suit land.

8. Neither of parties filed submissions despite such directions having been taken.

9. I have analysed the application, the supporting affidavit thereto and the supplementary affidavit alongside the replying affidavits by both parties and I find that the issues that commend for determination are;a.Whether the interested party ought to be enjoinedb.Whether this suit should be consolidated with Bungoma ELC No.5 of 2023c.Who bears the costs

10. Order 1 Rule 10(2) of the Civil Procedure Rules states as follows: -“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 or settle all questions involved in the suit, be added.”

11. It is now settled law that an interested party is one who has a stake in the proceedings, though he was not party to the cause ab initio. He is one who will be affected by the decision of the Court when it is made, either way. The Court should not act in vain by enjoining a party that clearly would have no interest in the subsequent proceedings.

12. In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR Justice Munyao Sila in a persuasive decision stated the following in dismissing an application for the applicants to be enjoined to the suit because they purchased the suit property from the plaintiffs’ person;In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party.In other words, there needs to be a demonstration that the interest of the person goes further than “merely being affected" by the judgment or order. It must be shown that the presence of that person is necessary, so that the issues in the suit may be settled, and that if the person is not enjoined, the court may not be fully equipped to settle the questions in the suit or may be handicapped in one way or another. A joinder may also be allowed if the proposed interested party has a claim of his own, which in the circumstances of the matter, needs to be tried, or is convenient to be tried alongside the claims of the incumbent plaintiff and defendant. The threshold for joinder of an interested party should not be too low, or else, this is prone to open doors for busybodies to be joined to proceedings, merely to spectate or confuse the issues in the matter. Apart from the above, whether or not to enjoin a person as an interested party, must be looked at within the context and surrounding circumstances of each particular case.

13. In Marigat Group Ranch & 3 others v Wesley Chepkoiment& 19 others [2014] eKLRThe application before court was for prayers filed by 110 persons seeking to be enjoined as interested parties and Justice Munyao Sila was of the view that;For purposes of one who wants to be enjoined as an interested party, I think, that such person needs to fit himself into the catch words "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…".This is the same position I took in the case of Joseph Leboo v Director, Kenya Forest Service & Others (Eldoret ELC No 273 of 2013).It should be appreciated that an interested party is not strictly plaintiff or defendant. The contest in a suit is between plaintiff and defendant and if any person has a claim over the subject matter, then such party needs to apply to be enjoined and considered as plaintiff or defendant, and not as interested party. An interested party would be a person who has a close connection to the subject matter of the suit yet not claiming any rights over it………….It follows therefore that applications seeking to join proceedings as interested parties ought to be handled with caution so that a person does not come to a suit, disguised as an interested party, while all along he/she wishes to agitate rights of his/her own over the subject matter of the suit.

14. These are persuasive decisions which have stated the correct legal position with regard to joining interested parties.

15. This suit was instituted by the Applicant claiming adverse possession. The proposed Interested party on the other hand has filed the current application seeking to be enjoined as the spouse to the Respondent claiming that the suit property is a matrimonial property. In support of her case, the Proposed Interested party has filed a certificate of marriage showing that she got married to the Respondent on 1/5/2004 having been married since 1974 under the Luhya Customary Laws. The Proposed Interested Party in support of her application stated that she was in gainful employment and attached a letter from her previous employer acknowledging the same and stated that she contributed to the purchase and development of the suit property and as such she has interest in its ownership. She equally filed a certificate of official search indicating that she has placed a restriction over the suit property.

16. The Applicant and the Respondent did not contest the above averments save for the Applicant who argued that this was a ploy by both the Respondent and the proposed interested Party to deny him his property while the Applicant argued that he did not know he had to seek his spouse’s consent prior to selling the suit property.

17. In my view and in light of the foregoing, I find that the proposed Interested party has demonstrated that she has a direct interest and stake in the proceedings by virtue of being the Respondents spouse and for having placed a restriction over the suit property such that the Applicant’s claim for adverse possession affects the rights protected by the restriction in place. I find that the Proposed interested party’s rights to the suit property land parcel NO. EAST BUKUSU/SOUTH KANDUYI/7676 will compromised if this suit is heard and determined without giving her a right to be heard.

18. In the case of Judicial Service Commission -vs-Speaker of the National Assembly & Another [2013] eKLR the court, while referring to the definition as given in the Mutunga Rules and reproduced above stated that:“…an interested party …… is a person with an identifiable stake or legal interest in the proceedings hence may not be said to be wholly non-partisan as he is likely to urge the court to make a determination favourable to his stake in the proceedings.”

19. From the foregoing, it is definite that an interested party is a person or a legal entity that is would be directly affected by the decision of a case either determined before a tribunal or a court of law especially if it is determined in favour of the adversary.

20. Further, I am persuaded that the proposed Interested Party will suffer prejudice if she is not joined as a party in the current suit. In my view, allowing the Respondent to solely argue the case as presented by the Applicant to the exclusion of the Proposed Interested Party would be against the rules of natural justice since this will leave the interests of the proposed Interested Party in the hands of the Respondent who, if he fails to adduce evidence or conduct their case properly and they lose, the Proposed interested party’s case will be extinguished due to the Respondents inadequacies. Further, the orders sought in the originating summons, if allowed as against the Respondent, will adversely affect the interests of the proposed interested party.

21. I have noted that this case is at the preliminary stages. The parties are yet to take pre-trial directions under order 11 of the Civil Procedure Rules and confirm the case as ripe for hearing. I also note that the parties have filed a consent intending to have the matter determined. However, the same is yet to be adopted as an order of the court and as it stands, the case is still active. Even so, I note that the laws allows a person to be added as a party to proceedings at any stage before the suit is determined and the court becomes functus officio. In the interest of justice, I find the find the Notice of Motion application dated 17/5/2023 merited proceed to allow the same in terms of prayer c. I also grant leave to the proposed interested party to be joined as a party to this suit.

22. As to whether this suit should be consolidation with Bungoma ELC Case No.5 of 2023, the Civil Procedure Rules is clear that the sole reason of consolidation of suits is for furthering expeditious disposal of cases under Order 11 Rule 3 (1)(h). The principles of consolidation of suits was re-stated in Stumberg And Another Vs Potgeiter 1970 E.A. 323 as follows:-“Where there are common questions of law or facts in actions having sufficient importance in proportion to the rest of each action to render it desirable that the whole of the matters should be disposed of at the same time, consolidation should be ordered”

22. . In the Indian case of Brij Kishore v Bir Singh & Othersat the High Court of Punjab and Harana (L.R 5922 of 2013 Justice Paramjeat Singh quotes the following from the Supreme Court Case of Prem Lala Nahata& Another v Chandi Prasad Sikaria, [2007] 2, Supreme Court Cases 551 at paragraph 18:-“It cannot be disputed that the Court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the Court and it appears to the Court that some common questions of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits”

23. The principles to be considered by court when dealing with applications for consolidation of suits were considered in the case of Nyati Security Guards & Services Ltd vs - Municipal Council of Mombasa [2004] eKLR where it was held:“The situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where:- 1. Some common question of law or fact arises in both or all of them; or

2. The rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or

3. For some other reason it is desirable to make an order for consolidating them.”22. The task before this court is therefore one of comparing the suits sought to be consolidated to determine whether the same involves common questions of law or fact, whether the reliefs claimed arise out of the same transaction or whether it is convenient and efficient to pursue the same in a consolidated suit.

24. The interested party prays to have the two suits consolidated and determined together. I note from the plaint attached to the supporting affidavit of the proposed interested party and marked “MNW iv” the Interested party contends that the agreement dated 21/10/1999 for the sale of the suit property was irregular for lack of her consent as the legal spouse of the seller. On the other hand, the Applicants claim in the current suit is for ownership of the suit property under the doctrine of adverse possession. I further note that the Applicant in the current case claims to have initially purchased the suit property from the Respondent.

25. In my view, this is a proper case for consolidation. The two suits involve a similar subject matter i.e. Land Parcel No. East Bukusu/South Kanduyi/7676. Further, the issues raised in the separate claims raise common questions of law and fact that form part of the same transaction. Ultimately, the main issue for consideration will be the ownership of land parcel No. East Bukusu/South Kanduyi/7676 and it will not be an efficient use of available judicial and administrative resources for one Court to determine that issue differently in this case and another Court to determine it differently in the other case.

26. Having considered the application dated 17th May,2023 and the affidavit evidence as well as the annexures thereto, I find the said application merited and do hereby allow in the following terms:-a.The interested party is hereby enjoined as a party in this suit.b.This case and Bungoma ELC Case No. 5 of 2023 are hereby ordered consolidated for purposes of being heard and determined together and the hearing shall be on the basis of the pleadings already filed in the two suits subject to any subsequent amendmentsc.The Originating Summons dated 20th April,2023 shall be the plaint while the Plaint dated 15th May, 2023 in Bungoma ELC Case No. 5 of 2023 shall be the interested parties’ statement of defenced.This file shall be the lead file for purposes of filing any further pleadings and recording of proceedings.e.Costs shall be in the cause.Orders accordingly.

DATED AND SIGNED AT BUNGOMA THIS 30TH DAY OF NOVEMBER, 2023. HON.E.C CHERONOJUDGEIn the presence of;1. Bwonchiri for the interested party2. Anwar H/B Mugisu for the Applicant**3. Respondent in person-present4. Okwaro C/A