[2023] KEHC 23453 (KLR)

Rashim Chitnis t/a Design Bureau & 2 others v Associates & another (Civil Appeal 411 of 2019) [2023] KEHC 23453 (KLR) (Civ) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23453 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 411 of 2019

CW Meoli, J

October 12, 2023

Between

Rashim Chitnis t/a Design Bureau

1st Appellant

Rashim Chitnis t/a Ruchira Restaurant

2nd Appellant

Rashim Chitnis & Shama Chitnis t/a Gat Safaris

3rd Appellant

and

Shoba Mulji t/a Mulji Associates

1st Respondent

S&M Properties Limited

2nd Respondent

Ruling

1. Before the court for determination are two (2) motions. The first is dated August 25, 2022 filed by S&M Properties Limited (hereinafter 2nd Respondent), and the second is dated December 14, 2022 filed by Rashim Chitnis t/a Design Bureau, Rashim Chitnis t/a Ruchira Restaurant and Rashim Chitnis & Shama Chitnis t/a Gat Safris (hereinafter the 1st, 2nd and 3rd appellant/appellant(s). For purposes of this ruling, the court will hereafter refer to the motions as the 2nd respondent’s motion and the appellants motion, respectively.

2. The 2nd Respondent’s motion seeks inter alia that the court be pleased to issue an order that the appeal against the 2nd Respondent is incompetent and should be struck out; and that the court be pleased to issue any other order it may deem fit. The motion is expressed to be brought pursuant to section 1A, 1B & 3A of the Civil Procedure Act (CPA) and order 5 rules 1, 6 & 15 of the Civil Procedure Rules (CPR). On grounds on the face of the motion as amplified in the supporting affidavit sworn by Shaukatali Khan, the director of the 2nd respondent.

3. To the effect that Shoba Mulji t/a Mulji Associates (hereafter the 1st Respondent) instituted proceedings in Nairobi Milimani CMCC No. 4456 of 2014 (hereafter the lower court suit) against the Appellants to which a defence and counterclaim was filed, and that the 2nd respondent was not initially a party to the suit. That the appellants thereafter filed an amended statement of defence and counterclaim enjoining the the 2nd respondent. He asserts that throughout the proceedings before the lower court, the appellants never extracted summons nor served the 2nd respondent to enable it enter appearance and or instruct counsel to represent it.

4. That through their final written submissions before the lower court, the Appellants sought entry of judgment against the 2nd Respondent for failure to enter appearance despite lack of proof of service admitted during the hearing of the lower court suit. Consequently, the trial court declined to enter judgment in default against the 2nd respondent, for want of service. Hence the Appellants cannot purport to include the 2nd respondent in respect of proceedings they neither participated in nor were privy to. That it would be greatly unjust and prejudicial for the 2nd respondent to be dragged into the instant appeal if the court did not strike out its name from the appeal.

5. The appellants oppose the 2nd respondent’s motion by way of grounds of opposition dated 26. 01. 2023 and replying affidavit dated April 14, 2023 sworn by Rashmin Chitnis. They view the 2nd respondent’s motion as brought in violation of the mandatory provisions of order 2 rule 16 of the Civil Procedure Rules. Because the same is undated and unsigned, hence a nullity incapable of giving rise to any reliefs and liable be struck out. Further Rashmin Chitnis, deposes that he is aware that the 1st Respondent is one of the directors of the 2nd Respondent and that between the year 2008 and 2012 the latter provided certain financial services to the Appellants while the 1st Appellant provided consultancy work for the 2nd Respondent, at the behest of the 1st Respondent over the same period.

6. That aggrieved by the judgment of the lower court, the Appellants proffered the instant appeal, which faults the trial court for not holding the Respondents herein liable and at this stage the court cannot embark on the merits of the appeal, or should it entertain any opinion expressed upon the appeal which may prejudice its fair hearing. He goes on to depose that until the appeal is heard, a court of justice should aim at sustaining the appeal rather than terminating it by summary dismissal.

7. He emphasized that the instant appeal faults the judgment of the lower court regarding findings relating to both Respondents and the Appellants will be unfairly prejudiced if the 2nd Respondent is struck off the appeal before the same is heard and determined. In conclusion, he deposes that the motion to strike out the 2nd Respondent from these proceedings is premature and prejudicial to the determination of the appeal.

8. The 1st Respondent supports the 2nd Respondent’s motion by way of what is described as a replying affidavit dated 31. 01. 2023. The gist of the affidavit material reiterates key contents of the 2nd Respondent’s affidavit in support of its motion. In addition, the deponent deposes that under order 5 of the Civil Procedure Rules there can be no suit without service upon a party sued hence it is only fair and just that the 2nd respondent is struck out of the instant appeal.

9. The Appellants’ motion on its part seeks inter alia that the court be pleased to enlarge time within which the Appellants may prosecute the appeal. The motion is expressed to be brought among others pursuant to section 1A, 1B & 3A of the (CPA) and order 50 rule 6 (CPR) and is supported by the affidavit sworn by Rashmin Chitnis. To the effect that following the delivery of the lower court judgment on June 21, 2019, his counsel made numerous requests for the supply of the typed proceedings from the lower court to enable filing of the record of appeal, and after the typed proceedings were finally obtained, the record of appeal was filed on June 21, 2022. That the appeal was however not admitted when listed before this court on June 23, 2022 due to non-availability of the lower court the court directing that the appeal be prosecuted within nine (9) months.

10. He goes on to depose that his counsel on record has made follow-ups at the lower court and it was only after a physical visit that the lower court file was availed as confirmed to the Deputy Registrar (DR) on November 17, 2022. That the DR noted that there was a pending undated application by the 2nd respondent, that despite Sergon, J’s directions on August 26, 2022 in respect of the said application the same has neither been dated nor served upon the Appellants, for the apparent purpose of delaying the hearing of the appeal past the nine (9) month timeline fixed by the court on June 23, 2022.

11. He further deposes that the timeline fixed by the court lapsed on 23. 03. 2023 and the Appellants as at 21. 06. 2023 had filed their record of appeal and subsequently made follow-ups to ensure the availability of the lower court file. That this court is empowered by the Civil Procedure Rulesto enlarge time fixed by the court for doing any act or taking proceedings and to avoid undue prejudice being occasioned to the Appellants, it is in the interest of justice that the time fixed by the court for the prosecution of the Appellants appeal be enlarged.

12. The 1st Respondent opposes the Appellants’ motion by way of grounds of opposition dated 06. 03. 2023. He takes issue with the motion on grounds that the same is inept, incompetent, frivolous, vexatious and therefore an abuse of the court process; that the said application fails to disclose any sufficient evidence in support of the plea for enlargement of time, variation of courts order and or any effort by the applicant to prosecute the instant appeal; that on 21. 06. 2022 this Court directed that the Appellants prosecute the instant appeal within 9 months failure to which the appeal would stand dismissed; and that since the aforesaid date and contrary to the appellants assertion there is no demonstration of the alleged follow by way of a letter to the court, emails or correspondence seeking in that regard for over 8 months.

13. Further, that it is trite law that enlargement of time is not a matter of right but an equitable remedy issued to a deserving party; that the belated application is a malicious attempt to further prevent the 1st Respondent from enjoying the fruits of their judgment; that orders issued by this Court on 21. 06. 2022 were issued in fairness to both parties to allow the appellants to prosecute their appeal within a limited time frame to avoid delay to the detriment of the 1st Respondent; that the Appellants have not satisfied the test for variation of Court orders; that there is no evidence of the alleged prejudice suffered by the Appellants while the the 1st Respondent continues to be tied up in endless litigation; that it is trite law that litigation must come to an end and the 1st Respondent being the successful party ought to enjoy the fruits of a judgment delivered in its favor over 3 years ago on 21. 06. 2019 .

14. That the Court ought to dismiss the instant application filed months after it was drawn and belatedly served on the Respondent 5 days before the hearing. Proof that it is a belated attempt to coerce the Court to enlarge time without any basis or sufficient reason and the application lacks merit and ought to be dismissed with costs to the 1st Respondent.

15. The 2nd Respondent equally opposes the Appellants motion by way of grounds of opposition dated 06. 03. 2023. To the effect that the said motion is grossly inept, totally incompetent, frivolous, vexatious and therefore an abuse of the court process; that no evidence has been tendered in support of the application in justifying the prayer to enlarge time herein; that in any event that the appeal as lodged against the 2nd Respondent is grossly incompetent there being no known cause against the 2nd Respondent ; and that the subsistence of the appeal continues to prejudice the 2nd Respondent; and hence the Appellants’ motion should be dismissed.

16. Both motions were canvassed by way of written submissions in which counsel reiterated their respective affidavit material and cited legal authorities in support of their rival positions. On the part of the Appellants, counsel began by addressing the 2nd Respondent’s motion. While calling to aid the decisions in Humphrey Mbaka Nandi t/a Nyati Distillers Limited v Equity Bank (K) Ltd & 2others [2018] eKLR and D.T Dobie & Company (K) Ltd v Joseph Mbaria Muchina &another (1982) 1 KLR, he submitted that the appeal challenges the trial court’s finding on the issue of liability in respect of the Respondents. Therefore, an invitation to strike out the name of the 2nd Respondent from the instant appeal not only invites the court to consider the merits of the appeal at this stage but also portends prejudice against the Appellants as a specific relief has been sought in their appeal against the 2nd Respondent. That the scales of justice tilt towards sustaining the appeal, therefore.

17. Addressing the merits of the Appellants’ motion, counsel anchored his submission on the provisions of order 50 rule 6 of the Civil Procedure Rules and the decision in First American Bank Kenya Ltd v Gulab P. Shah & 2others Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65 in respect of the court’s power to enlarge time and the principle to be considered therein. While reiterating the Appellants affidavit material, counsel contended that as of 23. 06. 2023, the Appellants had filed the record of appeal and all that was missing was the lower court record which stalled admission of the appeal, and exacerbated by the 2nd Respondent’s undated and unsigned motion brought with the intention to delay the prosecution of the appeal. It was further argued that the appeal as presented is meritorious; that the Respondents would not be prejudiced if the time within which to prosecute the appeal were enlarged and any prejudice could be reasonably compensated by an award of costs. The court was thus invited to dismiss the 2nd Respondent’s motion and allow the Appellants’ motion.

18. Counsel for the 1st respondent in addressing the 2nd Respondent’s motion, relied on the decision in Law Society of Kenya v Martin Day & 3others [2015] eKLR and Lee Mwanthi Kimani v National Social Security Fund &another [2014] eKLR to summarily submit that non-compliance with the requirement for taking out and service of summons cannot be cured at this belated stage. The court was urged to find that failure amounts to a fundamental defect at law not curable on appeal.

19. Concerning the Appellants’ motion, counsel cited the decisions in Jurgen Paul Flach v Jane Akoth Flach and Kinge Simon & 2others v Lucy Njoki Kamau [2016] eKLR to argue, no plausible explanation has been offered by the Appellants to support the prayer for enlargement of time. It was further submitted that the Appellants’ motion seeks an equitable remedy that calls for the court’s exercise of discretion whereas equity favors the vigilant and not the indolent.

20. That judgment having been delivered three (3) years ago the instant appeal is intended to deny the 1st Respondent from enjoying the fruits of successful litigation. The decisions in Mohamed Shally Sese (Shah Sese) v Fulson Company Ltd &another [2006] eKLR and Yussuf Mohamed Salat v Idris Ali Ahmed [2009] eKR were called to aid in this regard. In urging the court to dismiss the Appellants’ motion or in the alternative allow the 2nd Respondent’s motion, counsel emphasized that the Appellants have been indolent in pursuing their appeal.

21. Counsel for the 2nd Respondent on his part contemporaneously submitted on the two (2) motions before the court. Submitting on whether the 2nd Respondent’s name ought to be struck out from the proceedings, counsel relied on the decision in Frenze Investments Limited v Kenya Way Limited [2001] eKLR to contend that the Appellants have trivialized the matter of extraction, filing and serving of summons. That if the court were to proceed as urged by the Appellants, the same would be a grave injustice. Citing the provisions of section 1A & 3A of the Civil Procedure Act, counsel submitted that the Appellants by filing the instant appeal are inviting the 2nd Respondent to defend itself at the appellate stage in respect of a suit whose trial it never participated in.

22. Finally citing the decision in Mobile Kitale Service Station v Mobil Oil Kenya Ltd & anor Kisumu HCCC No 205 of 1999, counsel contended that the law governing service of summons is couched in mandatory terms. The court was urged to allow the 2nd Respondent’s motion while dismissing the Appellants’ motion with costs.

23. The court has considered the rival affidavit material canvassed in respect of the two motions and submissions. The court proposes to first deal with the Appellants’ motion whose outcome would have a logical bearing on the 2nd Respondent’s motion. The Appellants’ motion seeks enlargement of time within which to prosecute the appeal. The motion invokes inter alia the provisions of section 1A, 1B & 3A of the (CPA) and order 50 rule 6 (CPR). Section 3A of the CPA reserves “the inherent power of the court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”.

24. The Court of Appeal in Rose Njoki King’au &another v Shaba Trustees Limited &another [2018] eKLR stated that:-“Also cited was section 3A of the Civil Procedure Act which enshrines 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. In Equity Bank Ltd v West Link Mbo Limited [2013], eKLR, Musinga, JA stated inter alia, that, by “inherent power” it means that“Courts of law exist to administer justice and in so doing, they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from theConstitutionor statute. Such power enables the judiciary to deliver on their constitutional mandate…..inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion.”The Supreme Court went further in Board of Governors, Moi High School Kabarak and another v Malolm Bell [2013] eKLR, to add the following:-“Inherent powers are endowments to the court as will enable it to remain standing as a constitutional authority and to ensure its internal mechanisms are functional. It includes such powers as enable the Court to regulate its intended conduct, to safeguard itself against contemplation or descriptive intrusion from elsewhere and to ensure that its mode of disclosure or duty is consumable, fair and just.” (Emphasis added).

25. Both Respondents opted to file grounds of opposition in response to the Appellants’ motion. The court equally observes that the 1st Respondent’s grounds of opposition canvass factual issues. Order 51 rule 14 (1) of the Civil Procedure Rules prescribes for different ways of opposing a motion presented before the High Court as follows;-“(1)Any respondent who wishes to oppose any application may file any one or a combination of the following documents —(a)a notice preliminary objection: and/or;(b)replying affidavit; and/or(c)a statement of grounds of opposition;”

26. Recently the Court of Appeal in Blue Thaitian SRL (Owners of the Motor Yacht ‘Sea Jaguar’) v Alpha Logistics Services (EPZ) Limited (Civil Appeal (Application) E012 of 2020) [2022] KECA 1240 (KLR) addressed the effect of filing only grounds of opposition in response to a motion by stating that;-“Be that as may, it is notable that a statement of Grounds of Opposition is provided for in order 51 rule 14 of the Civil Procedure Rules as a recognized pleading opposing an application in the High Court, but is not expressly provided for in the Court of Appeal Rules.What then is the import of filing Grounds of Opposition in response to an application filed in the Court of Appeal? A “ground” is in this regard defined in Black’s Law Dictionary, Ninth Edition at page 772 as “the reason or point that something, (as a legal claim or argument), relies on for validity”. An affidavit on the other hand is defined at page 66 as “a voluntary declaration of facts written down and sworn to by a declarant before an officer authorized to administer oaths”. Therefore, any facts sought to be introduced in an application before this Court can only be done by way of an affidavit, and cannot be by way of Grounds of Opposition, and any attempt to do so through the Respondent’s Ground of Opposition will be incompetent. In essence, the Respondent is therefore restricted to only raising issues of law and to making legal arguments in this application.” (sic)

27. In opting to file grounds of opposition, the Respondents confined themselves to issues of law and legal arguments only. Nonetheless, an application for enlargement of time involves judicial discretion, upon established principles and the absence of a replying affidavit by the adverse parties does not necessarily give free reign to the Appellants.

28. Order 50 rule 6 of the Civil Procedure Rules provides for enlargement of time as follows: -“Where a limited time has been fixed for doing any act or taking any proceedings under these rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.”

29. Pertinent events captured on the record and culminating in the Appellants’ motion are as follows. The 1st Respondent filed a motion dated 19. 05. 2022 seeking to dismiss the appeal herein for want of prosecution. On 23. 06. 2022 when parties appeared before this court, it was noted that the Appellants Record of Appeal had been filed and by consent, the 1st Respondent’s motion was dispensed with. The court further directing the Appellants to “prosecute their appeal within (9) nine months failing which it would stand dismissed for want of prosecution. The lower court file has not been availed. DR to follow up and mention before her on 22/7/2022 to confirm availability. The ROA to be placed on file.”

30. When the matter came up on 22. 07. 2022, there was no appearance by either party or counsel and the Deputy Registrar directed that the appeal be mentioned on 15. 11. 2022 for further directions. The 2nd Respondent thereafter proceeded to file its motion dated 25. 08. 2022, which this court will address later in this ruling. On 15. 11. 2022 the matter did not proceed and was further scheduled for 17. 11. 2022. It is on the latter date that the Deputy Registrar noted the 2nd Respondent’s pending application and directed that the matter be placed before a judge for hearing.

31. The Appellants then filed their motion seeking to enlarge time within which to prosecute this appeal. Of significance in respect of the proceedings of 23. 06. 2022, is that a compromise was reached in respect of the 1st Respondent’s motion, that sought to dismiss the appeal for want of prosecution. However, this court went ahead to issue its own directions in respect of prosecution of the appeal, which was to be done within nine (9) months of the latter date.

32. In the case of Nicholas Kiptoo Korir Salat v Independent Electoral and Boundaries Commission and 7others [2014] e KLR, the Supreme Court stated that:“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtWhether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;Whether there will be any prejudice suffered by the respondents if the extension is granted;Whether the application has been brought without undue delay; andWhether in certain cases, like election petitions, public interest should be a consideration for extending time”.

33. The case of John Tomno Cheserem v Sammy Kipketer Cheruiyot [2018] eKLRin which a motion was brought under rule 4 of the Court of Appeal Rules appears to have specific relevance to the matter at hand as rule 4 of the Court of Appeal Rules is in pari materia with the provisions of order 50 rule 6 of the Civil Procedure Rules. The application in that case was for enlargement of time or leave to file a record of appeal out of time. The court (Mohammed J) observed that; -“7. The principles guiding the court on an application for extension of time premised upon rule 4 of the Rules are well settled and there are several authorities on it. The principles are to the effect that the powers of the court in deciding such an application are discretionary and unfettered. It is therefore upon an applicant under this rule to explain to the satisfaction of the Court that he is entitled to the discretion being exercised in his favour. In exercising my discretion, I ought to be guided by consideration of the factors started in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and any interested parties if the application is granted, and whether the matter raises issues of public importance. In the case of Fakir Mohammed v Joseph Mugambi & 2 others, Civil Appln No. Nai 332/04 (unreported) this Court rendered itself thus:-

“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the structure of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the effect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance- are all relevant but not exhaustive factors.”(8)The matters to be considered are not exhaustive and each case may very well raise matters that are not in other cases for consideration. In Mwangi v Kenya Airways Ltd, [2003] KLR 48, the Court having set out matters which a single Judge should take into account when exercising the discretion under Rule 4, went on to hold;-“The list of factors a court would take into account in deciding whether or not to grant an extension of time is not exhaustive. Rule 4 of the Court of Appeal Rules (Cap. 9 sub-leg) gives the single judge unfettered discretion and so long as the discretion is exercised judicially, a judge would be perfectly entitled to consider any other factor outside those listed so long as the factor is relevant to the issue being considered.”

34. The directions of this court issued on 23. 06. 2022 were explicit. The purport and effect was that the Appellants were to prosecute their appeal by 23. 03. 2023. Prior to the foregoing directions the Appellants filed their record of appeal on 21. 06. 2022, thus pursuant to the Court’s directions, upon the Deputy Registrar following up on availability of the lower court file, the Appellants were to take prompt action on disposal of the appeal within nine (9) months of the said date. Evidently, attempts at compliance were made by the Appellants as evidenced by the assertion that as of17. 11. 2022 the lower court record had been availed. Nevertheless, it is on the latter date that the Deputy Registrar noted that there was a pending application by the 2nd Respondent of which was prioritized for disposal as good practice would require. The effect being that the disposal would hinder the disposal of the appeal within the prescribed nine (9) months duration. In an apparent attempt to salvage the situation, the Appellants filed the instant motion.

35. Evidently, the filing of the 2nd Respondent’s motion derailed the prosecution of the appeal within the timelines given by the court, and the court would be loath to allow the motion to defeat the Appellants’ right of appeal, notwithstanding their past tardiness in pursuing the appeal. In so saying, the court bears in mind decision of the Court of Appeal in Vishva Stone Suppliers Company Limited v RSR Stone (2006) Limited (2020) eKLR emphasizing the right of appeal in the following terms:“Turning to the request to allow the applicant to exercise his now undoubted constitutionally underpinned right of appeal, the position is…. crystalized …. in the case of Richard Ncharpi Leiyagu v IEBC & 2 others (supra); Mbaki & others v Macharia & another [2005] 2EA 206; and the Tanzanian case of Abbas Sherally & another v Abdul Fazaiboy, Civil Application No 33 of 2003; for the holding inter alia that:(i)the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;(ii)the right to be heard is a valued right; and(iii)that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice;…”

36. In these circumstances, the court is persuaded to allow the Appellants’ motion by enlarging the time for the prosecution of the appeal by a further 6 months from the date of this ruling, failing which the appeal shall stand automatically dismissed. Costs will abide the outcome of the appeal.

37. The 2nd Respondent’s motion, as earlier noted, primarily seeks an order to the effect that the appeal against is incompetent and ought to be struck out. The motion equally invokes inter alia the provisions of section 1A, 1B & 3A of the (CPA). The Appellants’ technical objection thereto appears to have been overtaken by events as the 2nd Respondent has since supplied the court with a signed and dated copy of the motion pursuant to Sergon, J.’s directions issued on 26. 08. 2022 when the motion was presented under certificate of urgency.

38. On the merits of the 2nd Respondent’s application, the power of the court to enjoin or strike out a party from proceedings is donated by order 1 rule 10 (2) of the Civil Procedure Rules which 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..”

39. The 2nd Respondent essentially contends that throughout the proceedings before the lower court, the Appellants never extracted summons nor served the 2nd Respondent to enable it enter appearance and or instruct counsel to represent it, an issue of which was considerably addressed by the trial court. The 2nd Respondent contends that it would be greatly unjust and prejudicial for it to be retained in the instant appeal, not having participated in the lower court suit for no fault of its own but due to the failure of the Appellants to serve summons to enter appearance. The foregoing was not disputed by the 1st Respondent. However, the Appellants’ counterargument is that the instant appeal faults the judgment of the lower court on matters touching on both Respondents as and the Appellants will be unfairly prejudiced if the 2nd Respondent is struck off the appeal before the same is heard and determined. Moreover, the issue of the 2nd Respondent’s joinder to the instant appeal would be better canvassed at the hearing of the appeal.

40. At this juncture the court is not concerned with the substantive appeal, but to determine on such terms as may appear to the court to be just whether the 2nd Respondent, was improperly joined in this appeal and whether its name ought to be struck out. The grounds in the Appellants’ memorandum of appeal generally fault the trial court’s findings in respect of the 1st Respondent but ground 12 specifically challenges the findings relating to the 2nd Respondent in respect of which the Court found there was no proof of service of process.

41. Although order 1 rule 10 of the Civil Procedure Rules generally provides for the joinder of necessary parties and striking out of parties, Order 1 Rule 9 provides that no suit shall be defeated by mis-joinder or non-joinder of any party. It was held as follows in Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55:“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown.Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”

42. In Civicon Limited v Kivuwatt Limited and 2others [2015] eKLR the court stated:“Again, the power given under the Rules is discretionary, which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings.Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”

43. The question of the joinder of the 2nd Respondent to this appeal is intertwined with their joinder in the lower court suit. The 2nd Respondent was purportedly joined as the 2nd Defendant in the lower court via the 1st Appellant’s counterclaim. The propriety of that joinder and related issues arising from ground 12 of the memorandum of appeal regarding the findings of the trial court on the question of service of the process on the 2nd Respondent properly belong to the main appeal. They cannot be determined at this stage without somehow prejudicing the appeal. Without saying more, it appears to the court that the 2nd Respondent’s participation in this appeal while inconveniencing may at least be necessary. The said party can be adequately compensated through costs if successful in the appeal.

44. In conclusion, the court is not persuaded that the 2nd Respondent’s motion is merited and the same is hereby dismissed. Costs will abide the outcome of the appeal.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 12THDAY OF OCTOBER 2023. C.MEOLIJUDGEIn the presence ofFor the Appellant: Mr. OmugaFor the Respondents: Ms. Maina h/b for Ms. Ligunya for 1st Respondent and Mr. Gichamba for 2nd RespondentC/A: Carol