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Court of AppealPartially AllowedCivil Appeal (Application) 55 of 2016· [2022] KECA 1342 (KLR)

Khan & another v Registrar Lamu; Ferro (Proposed Interested Party)

Court of Appeal
2 December 2022
JLJ W Lessit
1,572 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal can replace an appellant with someone who has a direct stake in the case, not just add them as an interested party.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Malindi (delivered at Mombasa) by Lessit, JA, on a notice of motion dated March 23, 2017 by Gabriella Zouras Ferro, the proposed interested party. The underlying appeal challenges the dismissal of a judicial review application seeking certiorari to quash the Land Registrar Lamu's decision gazetted on May 21, 2010 revoking title to Lamu/Block IV/162, property of the late Antonio Ferro. The appeal had been filed by Mohamed Tariq Khan as administrator of the deceased's estate under a special power of attorney donated by the applicant, which she later revoked. She sought to be enjoined in the pending appeal as an interested party to prosecute the appeal. The respondent did not oppose. The court applied the Supreme Court's definition of an interested party in Trusted Society of Human Rights Alliance v Mumo Matemo and Nambuye, J's test in Kingori v Chege on necessary and proper parties. It held that the applicant was more than a mere stakeholder: she was a proper party with a designed subsisting direct and substantive recognizable interest, and prosecuting the appeal was not a role she could execute as an interested party. Invoking section 3A of the Appellate Jurisdiction Act and the overriding objective, the court allowed the application and enjoined her as appellant in place of the 1st appellant, with no order as to costs. The decision binds subordinate courts on the proper-party test and the Court of Appeal's power under section 3(2) to exercise the High Court's party-joinder jurisdiction.

Key legal issues

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01

Who qualifies as an interested party

Holding

An interested party is one with a recognizable stake in the proceedings who will be affected by the decision; the applicant's role of prosecuting the appeal could not be executed as an interested party.

Reasoning

The court adopted the Supreme Court's definition in Trusted Society and Black's Law Dictionary. The applicant sought to take over prosecution of the appeal after revoking the power of attorney; that role exceeds what an interested party can do, so interested-party status would not assist her.

p. 3
02

Whether the applicant could be enjoined in the appeal

Holding

Yes - as appellant in place of the 1st appellant, since she is a proper party with a direct and substantive recognizable interest.

Reasoning

Relying on Kingori v Chege on necessary and proper parties, the court found the applicant had a designed subsisting direct and substantive interest enforceable in law. The court invoked section 3A of the Appellate Jurisdiction Act and the overriding objective to grant substantive relief despite the unopposed application.

p. 3
03

Limits on adding parties

Holding

Parties cannot be added so as to introduce a new cause of action or alter the nature of the suit.

Reasoning

The court cited Nambuye, J in Kingori v Chege for the conditions for joining necessary and proper parties, including the requirement of a right to relief and that presence be necessary for complete adjudication.

p. 2

Legal principles established

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  • The Court of Appeal, in hearing appeals, has the power, authority and jurisdiction vested in the High Court, including the power to enjoin parties.
  • A person with a designed subsisting direct and substantive interest in the litigation is a proper party and may be substituted as a party to an appeal.

Court orders

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  1. 1.The application dated March 23, 2017 be and is hereby allowed in the following terms: the applicant be and is hereby enjoined in the appeal herein as the appellant in place of the 1st appellant
  2. 2.There will be no order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3(2)
  • Appellate Jurisdiction Actsection 3A
  • Appellate Jurisdiction Actsection 3B
  • Court of Appeal Rules, 2010rule 44
  • Court of Appeal Rules, 2010rule 47
  • Civil Procedure RulesOrder 1

Cases cited (2)

  • Kingori vs Chege & 3 others
    [2002] 2 KLR 243

    Conditions for joining necessary and proper parties; parties cannot be added to introduce a new cause of action or alter the nature of the suit.

  • Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others
    [2014] eKLR

    Definition of an interested party as one with a stake in the proceedings who will be affected by the decision.

On appeal from
High Court of Kenya at Malindi
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 44 and 47 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Khan & another v Registrar Lamu; Ferro (Proposed Interested Party)", Case Analysis (2022). Civil Appeal (Application) 55 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1342/eng@2022-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.