Kathendu Kareri & another v Ita Kiborio & another [2021] KEELC 806 (KLR)

Order 1 Rule 10(2) permits joinder at any stage of the proceedings but not after conclusion. The applicant's father was a defendant who voluntarily consented to withdrawal of the suit against him in 2017 and died in 2019. The claim that the father was unwell was not proved by medical evidence. An interested party has only a recognisable interest without claiming rights over the subject matter; one claiming such rights must apply to be joined as plaintiff or defendant. The applicant failed to demonstrate the Muruatetu requirements of personal interest, prejudice, and relevance of evidence.

The father knew the remaining suit concerned properties in which he was a registered owner yet chose to withdraw in 2017 and had ample time to seek re-joining before his death in 2019. Review under Order 45 requires sufficient reason; new and important evidence must be such as could not have been discovered with due diligence and was not available to the applicant or the court. The applicant did not demonstrate this, so the discretion was not exercised in his favour.

Having refused joinder and review, the applicant is not a party. Stay of implementation can only be considered in favour of a party to the suit. A stranger cannot seek stay of a judgment in a case to which he is not a party. The prayer therefore fails automatically with the failure of the preceding prayers.

Costs follow the event unless the court, for good reason, orders otherwise. The applicant, a stranger to the suit, made the other parties incur costs. No good reason was shown to depart from the ordinary rule, so the applicant was ordered to pay the costs of the application.