[2020] KECA 334 (KLR)
The Court of Appeal found that Dr. Patrick Tumbo Nyamemba had demonstrated a sufficient legal interest in the suit properties, having provided evidence of ownership and payment as a bona fide purchaser for value. The court held that his rights could be adversely affected by the outcome of the proceedings if he was...
Source-derived case information.
- Citation
- [2020] KECA 334 (KLR)
- Parties
- Applicant: Dr. Patrick Tumbo Nyamemba; Respondent: Marituai Karingithe (Suing as the Legal representative of the estate of KarKise Ole Mosiro); Respondent: Boman Mosiro; Respondent: Elijah Mosiro; Respondent: Simon Ndungu Supeyo; Respondent: Joseph Crespers Supeyo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 132 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Joinder as Interested Party
- Outcome
- application allowed
- Judges
- MA Warsame, DK Musinga, F Sichale
- Legal Topics
- Joinder of Parties, Interested Party Status, Purchaser for Value, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Patrick Tumbo Nyamemba
Applicant
Marituai Karingithe (Suing as the Legal representative of the estate of KarKise Ole Mosiro)
Respondent
Boman Mosiro
Respondent
Elijah Mosiro
Respondent
Simon Ndungu Supeyo
Respondent
Joseph Crespers Supeyo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Joinder as Interested Party
Legal Issues
- 1 Whether Dr. Patrick Tumbo Nyamemba should be enjoined as an interested party in the proceedings.
- 2 Whether the applicant has demonstrated a sufficient stake in the subject matter to warrant joinder.
Ratio Decidendi
The Court of Appeal found that Dr. Patrick Tumbo Nyamemba had demonstrated a sufficient legal interest in the suit properties, having provided evidence of ownership and payment as a bona fide purchaser for value. The court held that his rights could be adversely affected by the outcome of the proceedings if he was not joined, and that it was in the interest of justice to allow him to participate. The court emphasized that the determination of the legitimacy of his interest would be addressed in the substantive proceedings, but for the purposes of joinder, he had met the threshold for being enjoined as an interested party. The application for joinder was therefore allowed.
Court Disposition
application allowed
Orders
- The Notice of Motion dated 10th July, 2020 is allowed; Dr. Patrick Tumbo Nyamemba is joined as an interested party in Civil Application No. 132 of 2020.
- No order as to costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: WARSAME, MUSINGA, SICHALE JJ.A)
CIVIL APPLICATION NO. 132 OF 2020
BETWEEN
DR. PATRICK TUMBO NYAMEMBA..............INTERESTED PARTY/APPLICANT
AND
MARITUAI KARINGITHE(Suing as the Legal representative of the estate of KarKise
Ole Mosiro).................................................................1ST APPLICANT/1ST RESPONDENT
BOMAN MOSIRO...............................................2NDAPPLICANT/2NDRESPONDENT
ELIJAH MOSIRO................................................3RDAPPLICANT/3RDRESPONDENT
SIMON NDUNGU SUPEYO............................1STRESPONDENT/4THRESPONDENT
JOSEPH CRESPERS SUPEYO.......................2NDRESPONDENT/5THRESPONDENT
(Being an Application for joinder of Dr. Patrick Tumbo Nyamemba as an Interested Partyin Civil Application No. 132 of 2020)
**********************
RULING OF THE COURT
1. By a Notice of Motion dated 10th July 2020, the applicant, Dr. Patrick Tumbo Nyamembaseeks to be enjoined to the proceedings as an Interested Party.
2. Briefly, the facts giving rise to this application are that sometime in October, 2010 the applicant legitimately purchased Land Reference Ngong/Ngong/52496andLand Reference Ngong/Ngong/52503(the suit properties) from the1STAPPLICANT/1STRESPONDENTand the estate of the late Rangida Ole Mosiro for Kshs.16,000,000; that he was not aware the suit properties were involved in Court proceedings in ELC No. 372 of 2017 (formerly Environment and Land Cause No. 963 of 2006)and he only came to learn of the said proceedings and subsequent decision in the matter on or about December 2019 where the Court ordered the eviction of the occupants from the suit properties.
3. The application is supported by the affidavit of the applicant where it is deponed that: there is an application before this court seeking orders of stay of the Superior Court’s Judgment; as the registered proprietor of the suit properties, the applicant has an indefeasible interest in the suit properties and in any proceedings affecting them; his rights will be adversely affected if the order sought is not granted; and that it is in the interest of justice that the application be allowed.
4. We have carefully considered the application, the affidavit in support, and the law. As was stated by the Supreme Court in Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 Others,Sup. Ct. Pet.No. 12 of 2013
“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.”
5. The applicant herein has annexed copies of title documents to the suit property issued on 14th December, 2011 as proof of ownership, cheques and bank transfers showing payment to the 1st Applicant/1st Respondent and the estate of the late Rangida Ole Mosiro who were the previous land owners, the two transfers dated 14th December 2011 and the LandControl Board consent. In our view, therefore, the applicant has demonstrated to our satisfaction that his interest as a legitimate purchaser or innocent purchaser for value would be affected or ultimately defeated, if he is not joined as an interested party. It is for the court to determine, whether his interest in the suit property was legitimate or otherwise but as for now, we think, it is important for the applicant to canvass his interest or cause of action.
6. In the circumstances we find that this is a proper application for joinder. The applicant has a stake in the application before this Court and will suffer substantial prejudice if the application is denied. Accordingly, we allow the Notice of Motion dated 10th July, 2020 and make no order as to costs.
Dated and Delivered at Nairobi this 2ndday of October, 2020.
M. WARSAME
.....................................
JUDGE OF APPEAL
D.K MUSINGA
.....................................
JUDGE OF APPEAL
F. SICHALE
.....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original
Signed
DEPUTY REGISTRAR