[2023] KECA 1355 (KLR)

Patel & another v Kimundia & 4 others; Wairi (Proposed Interested Party) (Civil Application E172 of 2023) [2023] KECA 1355 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1355 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Application E172 of 2023

DK Musinga, HA Omondi & GWN Macharia, JJA

November 10, 2023

Between

Bharatkumar Narichandra Patel

1st Appellant

Harsha Bharat Patel

2nd Appellant

and

Emily Wanjiku Kimundia

1st Respondent

Hesbon Wairi Kamau

2nd Respondent

Irene Njeri Kamau

3rd Respondent

Chief Lands Registrar

4th Respondent

Hon Attorney General

5th Respondent

and

Anne Wangechi Wairi

Proposed Interested Party

(Being an application for joinder as an interested party and leave to adduce additional evidence together with an application for stay of execution of the judgment (J. Mogeni, J.) delivered on 14th February 2023 in Environment and Land Court Cause No. 42 of 2015 Environment & Land Case 42 of 2015 )

Ruling

1. Before us for determination are two applications. The first is dated 6th April 2023 made by the proposed interested party, seeking to be joined as an interested party, and for leave to adduce additional evidence by way of an affidavit. The second application is dated 22nd March 2023 made by the appellants seeking stay of execution of the judgment delivered on 14th February 2023 (J. Mogeni, J.) in the Environment and Land Court (ELC) at Nairobi Cause No. 42 of 2015.

2. The background to the two applications is that, by an amended plaint dated 22nd November 2018, the 1st to 3rd respondents sought judgment against the appellants and the 4th and 5th respondents jointly and severally for the following orders: a permanent injunction; general damages for trespass; vacant possession of the suit land; a revocation of the ownership documents held by the appellants; and costs of the suit. It was their contention that the deceased, Edward Wairi, purchased the suit property, namely LR No. 7785/288 (IR No. 52118) situated in Runda in Nairobi and relocated abroad, leaving the title to the land in the custody of his then advocate, one Grace Githu. The law firm of the said advocate wound up and the title deed could not be traced. The 1st to 3rd respondents made enquiries at the lands registry, only to learn that the land had been registered in the names of the appellants as joint tenants, which registration was fraudulent, unlawful and irregular.

3. The trial court in its judgment held that it was upon the appellants to prove that the deceased donated the Power of Attorney to the proposed interested party, who was not a party then, thus disproving the respondents’ claim that the deceased did not donate that power; that they (the appellants) failed to call evidence to support their claim that the deceased executed the disputed Power of Attorney as pleaded; and that the forensic examination report dated 6th February 2015 prepared by Chief Inspector Daniel Gutu proved that it was a forgery. It held that the alleged Power of Attorney was fraudulent and a forgery and, therefore null and void; that the proposed interested party had no power or authority to sell and transfer the suit property on behalf of the deceased; and that the transfer that was purportedly executed on the basis of the non-existent Power of Attorney did not amount to a valid transfer in accordance with the law. It proceeded to issue the following orders:a.A permanent injunction be and is hereby issued restraining the appellants, their employees, servants and or agents and any other person acting or purporting to act on their behalf from trespassing, occupying, alienating, dealing in any manner or otherwise interfering with the deceased’s property being LR no. 7785/288. b.A mandatory injunction be and is hereby issued to the 4th Respondent to rectify the Land Register for the property known as LR no. 7785/288 by removing the Transfer Entry known as “Entry No. 4” forthwith unconditionally.c.A revocation of any documents of ownership held by the appellants be and is hereby issued in regard to LR no. 7785/288. d.The appellants are given six (6) months’ notice to vacate the suit property known as LR No. 7785/288 (IR No. 52118) measuring 0. 3966 Hectares situated in the Runda area, failure to which an eviction order to issue.e.The appellants to pay Kshs. 12,000,000. 00 (Kenya Shillings Twelve Million only) being general damages for trespass.f.The appellants, 4th and 5th respondents, to bear the costs of this suit jointly and severally together with interest thereon at court rate from the date of this Judgment until payment in full.

4. Aggrieved, the respective applicants filed the applications that are now before us.

5. The first application which is dated 6th April 2023 is made by the proposed interested party. It is supported by the grounds on the face of it and an affidavit sworn by the applicant on 6th April 2023. She avers that by a judgment delivered on 14th February 2023 in ELC Cause No. 42 of 2015- Emily Wanjiku Kimundia & others v. Chief Lands Registrar & Others, the trial court made a finding without her participation in the proceedings that she had fraudulently transferred the suit property known as LR No. 7785/288 on the strength of an unlawful and forged Power of Attorney, and proceeded to direct that the estate of the late Edward Kamau Wairi be registered as the owner of the suit property. She contends that she was the registered owner of the suit property, which she sold to the appellants, being the donee of a Power of Attorney by the deceased Edward Kamau Wairi; that the trial court erred in ordering that the suit property reverts to the estate of the deceased, and by granting the respondents vacant possession thereof when evidence on record showed that she was a co-registered owner of the suit property before it was transferred to the appellants; that she was also a joint tenant of the suit property with the deceased, thus it was automatically registered in her name having survived the deceased; that she was not a party to the proceedings in the trial court, as such, she was never heard nor represented to enable her ventilate her side of the case; that she only came to learn of the judgment when the applicants reached out to her enquiring if she was involved in any forgery; that this is why she seeks to participate in the proceedings in the appeal; further, that upon joinder, she seeks to adduce evidence by means of an affidavit, which evidence could not be availed at the trial. It is her contention that the evidence she seeks to adduce will impact on the determination of the appeal. Furthermore, any decision that will be made by this Court will adversely affect her interest in the suit property; that her presence in the appeal will enable the Court to adjudicate completely all questions in the appeal; and, in any event, no prejudice will be suffered by other parties if the application is allowed.

6. The application is opposed by the 1st to 3rd respondents vide a replying affidavit sworn by the 2nd respondent on 20th June 2023. He avers that the trial court did not make any adverse orders against the proposed interested party; that she has not advanced any justifiable reasons to warrant grant of the orders sought; that she was listed as a witness in the trial but she failed to appear to testify; that her claim that the suit property devolved to her on the strength of a Power of Attorney donated to her by the deceased is dubious as she failed to adduce evidence in the trial to elucidate how the alleged Power of Attorney was donated to her; and therefore, her joinder as a party in the appeal is not necessary as she had been aware of the suit but elected not to participate.

7. The proposed interested party filed submissions dated 27th April 2023, the appellants in support of the application filed theirs dated 29th June 2023, while those of the 1st to 3rd respondents are dated 20th June 2023. We shall revisit the respective submissions later on in this ruling.

8. The second application dated 22nd March 2023 is made by the appellants. It is supported by the grounds on its face and an affidavit of the 1st appellant, sworn on even date. On arguability of the appeal, it is contended that some of the grounds to be argued on appeal are: that the learned Judge failed to take into account that the proposed interested party was a necessary party to the proceedings; that the learned Judge erred in finding that the Power of Attorney was fraudulent; in awarding damages that were not proportionate to the circumstances of the case; and in failing to consider the appellants’ pleadings. On the argument that the appeal would be rendered nugatory if the orders sought are not granted, it is contended that there is a likelihood that the appellants will be evicted from the suit property, thus rendering them homeless. The appellants too fear that upon eviction, the suit property is likely to be occupied by the 1st to the 3rd respondents. Further, that the impugned judgment shall be executed, implying that they (the appellants) will pay general damages to the tune of Kshs.12 million, which the respondents have not demonstrated ability to refund if the appeal be succeeds. Consequently, if a stay of execution is not issued, the intended appeal will be rendered a pure academic exercise. Finally, they argue that the prejudice they will suffer if a stay of execution is not granted cannot be compensated by way of damages, and it is therefore in the interest of justice that the orders sought be granted.

9. The respondents oppose the application by way of a replying affidavit sworn on 20th June 2023 by the 2nd respondent. He contends that the appellants have willfully declined to comply with the trial court’s judgment having failed to pay the general damages as well as costs of the suit; that the appeal is not arguable as the proposed interested party was named as a witness for the appellants, but the appellants willfully declined to call her to testify; that the deceased participated in the proceedings prior to his death, having sworn a written statement which was adduced in trial; that the application is an afterthought and has been made in bad faith with the intention of denying the respondents the fruits of the judgment; that if the Court be so inclined to grant the stay of execution, it should order that the judgment sum of Kshs.12,000,000. 00 be deposited in an interest earning escrow account pending the hearing and determination of the appeal.

10. The matter came up for hearing before us on 3rd July 2023. Learned counsel Mr. Gumbo, Mr. Ochola and Mr. Odhiambo appeared for the appellants, learned counsel Mr. Munene appeared for the 1st to 3rd respondents and learned counsel Mr. Malenya appeared for the proposed interested party. There was no representation for the 4th and 5th respondents. The appellants filed submissions that were not properly dated, and further submissions dated 29th June 2023; the 1st to 3rd respondents filed submissions dated 20th June 2023; and those of the proposed interested party are dated 27th April 2023.

11. All counsel highlighted their submissions in respect of the two applications.

12. In summary, Mr. Malenya submitted that the proposed interested party was a joint tenant and owner of the suit land with the deceased Edward Wairi, thus under the doctrine of survivorship, upon the death of the deceased, the property automatically devolved to her wholly; and that she was never served with the pleadings nor made a party to the proceedings before the trial court. Whilst relying on the case of David Kiptungen v. Commissioner of lands Nairobi & 4 others [2016] eKLR, counsel submitted that any person affected by a judgment ought to be served with pleadings for purposes of participating in a matter, and in this case, in the appeal. He submitted that if the proposed interested party is joined in the appeal, it will aid in determining the issues at hand; and that upon joinder, she be allowed to adduce additional evidence in the form of an affidavit. Finally, counsel submitted that the proposed interested party supported the appellants’ application seeking a stay of execution of the trial court’s judgment.

13. Mr. Gumbo, in supporting Mr. Malenya’s arguments, submitted that pursuant to Article 50 of the Constitution, a party cannot be condemned unheard; that the intended proposed party is a necessary party in the appeal on the grounds that: she was the wife of the plaintiff in the primary suit; she sold the suit land in her capacity as a joint owner with the deceased; she was the donee of the Power of Attorney, hence the only person capable of shedding light on any issues arising from the Power of Attorney; and that she is also affected by the decision that was made by the trial court.

14. In opposing the applications, Mr. Munene highlighted that the proposed interested party was afforded a right to be heard as a witness for the appellants; that although she did not testify, that does not fetter the fact that she was privy to the proceedings; that she failed to exercise her right to be heard, and, as such, her application is an afterthought and ought to be dismissed. Counsel relied on the Supreme Court case of Francis Karioki Muruatetu & Another v. Republic & 5 others Petition 15 consolidated with 16 of 2013 (2016) eKLR where the threshold for joinder of a party was set out, which is that, the party seeking a joinder must clearly and identifiably show that he is proximate to the proceedings and that his role is not merely peripheral. Counsel submitted that the proposed interested party had not satisfied this threshold. On the prayer to adduce additional evidence, counsel submitted that the intended evidence had not been availed before this Court to enable it assess its usefulness in the appeal. He urged that the application be dismissed as there was no fresh evidence for consideration by the Court.

15. On query from the Court, counsel stated that it was not in dispute that the proposed interested party was the widow of the deceased, one Edward Wairi, or that, the two were joint owners of the suit property.

16. In rebuttal, Mr. Malenya submitted that the intended proposed party was never called as a witness nor served with any pleadings, and that she only learnt of the existence of the suit after the judgment was rendered. These circumstances called for her to be joined as a party in the appeal.

17. On query from the Court, Mr. Gumbo stated that the position on the ground was that the appellants were in possession of the suit land, but purely on the basis that the trial court granted a six month stay of execution, which period had been spent by five months.

18. We have considered the applications, the responses, the submissions made on behalf of the parties and the law. For good order, we find it prudent to deal with the respective applications separately.

1st Application 19. This is made by the proposed interested party whose issues for determination are whether the proposed interested party should be joined to these proceedings, and whether she should be allowed to adduce evidence.

20. The first issue in this application is hinged on rule 79 of the Court of Appeal Rules. It states:An intended appellant shall, before or within seven days after lodging a notice of appeal, serve copies thereof on all persons directly affected by the appeal: Provided that the Court may on application, which may be made ex-parte, within seven days of lodging the notice of appeal, direct that service need not be effected on any person who took no part in the proceedings in the superior court.

21. The word “affected” was defined by this Court in the case of Centre for Rights Education and Awareness & Another v. John Harun Mwau & 5 Others, CA No. 74 of 2014 (CA). Referring to the cases of Kamlesh Pattni v. Starwood Hotels and Resorts World Wide Inc. & 7 Others Civil Application No. NAI 330 of 2001 (UR 176/2001) and Commercial Bank of Africa Limited v. Isaac Kamau Ndirangu, Civil Appeal No. 157 of 1991, (CA); [1992] eKLR, the Court held that:“the person referred to in the Rule is, at least, one whose property rights are affected by the judgment appealed against and that he need not have been party to the superior court case to be served and allowed to participate in the appeal.”

22. The Supreme Court in Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 others [2014] eKLR, at paragraphs 18 of the ruling defined an interested party as follows: -“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.”

23. From the foregoing, it is a concluded principle that joinder of a party is not an automatic right, but one which is granted upon exercise of the discretion of the court concerned. The court on its part should exercise such discretion under defined parameters, being that it must be satisfied that:a.The intended party has a personal interest or stake in the matter in question; and that interest is clearly identifiable and proximate enough and not merely peripheral.b.The intended party’s presence would enable the court to resolve all the matters in the dispute.c.The intended party would suffer prejudice in case of non-joinder.d.The joinder of the intended party 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.

24. The respondents argue that the proposed interested party was aware of the proceedings, on account that she was listed as a witness by the appellants, but she failed to testify. To us, the mere fact that she was listed as a witness for the appellants is not proof that she was aware of the proceedings. There is no evidence, whether by way of an affidavit of service or other means that she knew of the existence of the suit. Furthermore, none of the parties herein claim to have served her with the pleadings or proceedings or even a hearing notice for that matter. As it stands, her averment that she only became aware of the proceedings after judgment had been rendered remains uncontroverted. This then leads to the inescapable conclusion that she was not only condemned unheard, but she was also not accorded the opportunity to be heard.

25. The right to be heard is sacrosanct as it is the avenue through which a party accesses justice. Justice cannot be seen to be done where a party who ought to be heard was not heard or accorded an opportunity to be heard. In the case of Mbaki & Others v. Macharia & Another (2005) 2 EA 206, at page 210, this Court stated as follows:“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”

26. Again, in the case of Communications Commission of Kenya & 4 others v. Royal Media Services Limited & 7 others [2014] eKLR, the Supreme Court held that:“(22)In determining whether the applicant should be admitted into these proceedings as an Interested Party, we are guided by this Court’s Ruling 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.... ”

27. In this case, the proposed interested party avers to have been the wife of the deceased, one Edward Muiri, who allegedly vested in her powers through a Power of Attorney registered on 6th February 1991, and to have been a joint tenant with the deceased. It is through this Power of Attorney and the fact that she was a joint tenant that she sold the suit property to the appellants. In such a scenario, it can be conclusively said that she has a personal interest in the matter, which interest is clearly identifiable and not merely peripheral. The trial court in its judgment held that the said Power of Attorney was a forgery. We then ask; who can clear the air as to whether indeed the Power of Attorney was or was not a forgery? The answer only lies in joining the proposed interested party in the appeal so that she can articulate the genesis of the ownership of the suit land together with the Power of Attorney, thus enable the Court to resolve the dispute. Ultimately, it will aid the course of justice for the proposed interested party to participate in the on appeal.

28. Turning to the second issue, which is whether new evidence should be introduced, we realise from the undated draft replying affidavit that the intended evidence comprises: a copy of the proposed interested party’s identity card, a copy of the title deed of the suit land, a copy of a Power of Attorney registered on 6th February 1991 and a report by a document examiner. Our task here is to grapple with the threshold for introduction of new evidence on appeal.

29. In Raila Odinga and 5 Others v. I.E.B.C. and 3 Others [2013] eKLR, the Supreme Court stated:“The other issue the Court must consider when exercising its discretion to allow a further affidavit, is the nature, context and extent of the new material intended to be produced and relied upon. If it is small and limited so that the other Party is able to respond to it, then the Court ought to be considerate, taking into account all aspects of the matter. However, if the evidence is such as to make it difficult or impossible for the other Party to respond effectively the Court must act with abundant caution and care.”

30. We have evaluated and considered each of the items of the intended additional evidence sought by the proposed interested party. One of the main contestations in the trial court and which contest this Court will be called upon to resolve is whether or not the proposed interested party had the power and authority to deal with the suit land, and whether the suit land was registered under joint tenancy.

31. The documents being sought to be produced were deeply mentioned by the trial court in its judgment, though it is not clear how that came to be when they were never produced in the trial. Nevertheless, for the reasons stated herein above, in our humble view, the proposed interested party shall be prejudiced if the evidence sought to be adduced is locked out.We are satisfied that the additional evidence, which is documentary in nature, is relevant and will assist the Court to do justice in a fair manner. Further, the said additional evidence sought to be admitted is not voluminous, and the respondents will have no difficulty in responding to the same.

2nd Application 32. In our view, this being a rule 5 (2) (b) application, it turns upon a consideration of the issues as established by this Court in the case of Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others [2013] eKLR, being firstly, an applicant has to satisfy the Court that he or she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but suffice to state that it is an appeal that is not frivolous. Secondly, an applicant has to demonstrate that unless an order of stay is granted, the appeal or intended appeal, if successful, would be rendered nugatory. See Anne Wanjiku Kibeh v. Clement Kungu Waibara and IEBC [2020] eKLR.

33. An arguable appeal is simply one that raises a bona fide arguable point that deserves to be considered and determined by the Court. In other words, an arguable appeal is one that is not frivolous. To establish an arguable appeal, the applicant does not have to present a multiplicity of grounds. Even a single bona fide ground will suffice. From a cursory look at the application, the submissions by the appellants and the memorandum of appeal, to our minds, whether the proposed interested party had power to deal with the land; whether the suit land was registered as a joint tenancy; whether the Power of Attorney was a forgery; whether fraud was proved in relation to the suit property; and who the legitimate owners of the suit property are, are all clearly arguable points, not frivolous. As was held by this Court in National Industrial Credit Bank Ltd v. Aquinas Francis Wasike & another [2006] eKLR:“It is to be remembered that in an application such as this the grounds are not to be argued; all an applicant is required to do is to point out to the Court the ground or grounds which he believes are arguable and leave it to the Court to decide on the issue of whether or not the matters raised are arguable.”

34. On the nugatory aspect, it is trite that whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed or injuncted, if allowed to happen is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.

35. The trial court in its judgment ordered for the appellants’ eviction from the suit land within six months after judgment. It is thus apparent that the appellants will be rendered homeless unless the order sought is granted. Further, they were ordered to pay the 1st to 3rd respondents general damages for trespass amounting to Kshs.12 million. While it is not in contention that the appellants will suffer loss and economic prejudice, they averred that the respondents may not be able to repay the sum in the event that the appeal is successful. This is an averment that the 1st to 3rd respondents did not respond to or deny.

36. We do thus find that the appellants have also met the threshold for the second limb of the application, and having established the twin principle for consideration in an application under rule 5 (2) (b) of this Court’s Rules, the order of stay of execution is merited.

37. Accordingly, we find the Notices of Motion dated 6th April 2023 and 22nd March 2023 to be meritorious. We hereby allow them on the following terms:a.The proposed interested party is hereby joined as the 3rd appellant in the appeal.b.Leave be and is hereby granted to the 3rd appellant to adduce and file additional evidence limited to the documents referred to in the undated draft replying affidavit.c.The additional evidence be adduced by way of affidavit and be filed and served as supplementary record of appeal within 14 days of the date of this Ruling.d.The respondents to file a Replying Affidavit, if any, to the Supplementary Record of appeal within 14 days of the date of service.e.The respondents are at liberty to cross-examine the 3rd appellant on the said additional evidence.f.Stay of execution of the judgment (J. Mogeni, J.) delivered on 14th February 2023 in the Environment and Land Court Cause No 42 of 2015) is hereby granted pending the determination of the appeal.g.We hereby order that this appeal be heard on a priority basis.h.Costs of both applications to be in the appeal.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. D. K. MUSINGA, (P)...................................JUDGE OF APPEALH. A. OMONDI...................................JUDGE OF APPEALG. W. NGENYE-MACHARIA...................................JUDGE OF APPEALI certify that this is a true copy of the originalsignedDEPUTY REGISTRAR