Notice of Motion by Intended Interested Parties in a derivative suit concerning Kitale Hotel (Trans Nzoia Investment Company Limited)
The bottom line
#The Environment and Land Court in Kitale dismissed shareholders' bid to join a Kitale Hotel ownership suit, ruling that merely owning shares does not entitle anyone to become an interested party.
What this practically means
#Executive summary
#Key legal issues
#Competence of the supporting affidavit
The supporting affidavit sworn by Joshua Maruti Kai on behalf of the other intended interested parties was incompetent for want of written authority, but the court considered it under Article 159(2)(d) in determining the merits
Order 1 Rule 13(1) & (2) requires written authority signed by the party and filed in the case when one of several parties acts for others. The court held this applies mutatis mutandis to applicants in applications such as joinder. Authority cannot be presumed. However, invoking Article 159(2)(d) and the principle that procedure should not fetter justice, the court allowed the affidavit to be considered on the merits.
Whether the applicants met the requirements for joinder as interested parties
The application failed; the applicants did not demonstrate a personal stake, prejudice, or a case distinct from the plaintiff's, as required by the Muruatetu and Communications Commission criteria
Under the Mutunga Rules 2013 Rule 7 and the Supreme Court's guidance in Muruatetu and Communications Commission, an intending interested party must show a clear, proximate personal interest, prejudice from non-joinder, and the case they intend to make. Shareholders of the affected company did not show individual rights or stakes; the suit is a derivative action for the company's benefit, and the applicants did not show their submissions would not merely replicate the plaintiff's case.
Legal principles established
#- An assertion that a deponent has authority of others to swear an affidavit on their behalf must be accompanied by written authority filed in the case; it cannot be imagined, implied or presumed
- Where an affidavit in support of an application is sworn without written authority from co-applicants, the deposition is defective in its entirety and must be struck out
- Mere shareholding in the affected company is not a sufficient stake to justify joinder as an interested party in a derivative suit
Court orders
#- 1.The Notice of Motion dated 23/04/2024 is dismissed
- 2.The Applicants shall pay the costs of the Application to the parties who opposed it
- 3.The matter to be mentioned on 08/10/2024 to fix a date for further hearing
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act and Order 1 Rules 8(3) and 10(2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Notice of Motion by Intended Interested Parties in a derivative suit concerning Kitale Hotel (Trans Nzoia Investment Company Limited)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6383/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.