Stephen Kamau Njoroge (Plaintiff/Respondent) v Paul Mwangi Ngutu & 4 others; Proposed Defendants/Applicants (Applicants)

The court held that Order 45 Rule 1 envisages an aggrieved person whether party or non-party, applying the Court of Appeal decision in Accredo Ag & 3 others v Stefiano Uccelli. However, being a non-party does not dispense with proof of the grounds of review; the applicant must substantiate discovery of new matter, error apparent, or sufficient reason, and show the decision affects his cognizable rights.

The 2nd Defendant annexed a record of appeal to the Court of Appeal and the 2nd and 3rd Defendants had filed a Notice of Appeal, which under Order 42 Rule 6(4) is deemed an appeal. The existence of an appeal removes the matter from Order 45 Rule 1(a). Independently, the Applicants did not substantiate the alleged new and important evidence and produced no certificates of title to demonstrate any cognizable interest.

The court held that a person seeking joinder must demonstrate an actionable stake or interest that is not remote, preposterous or imaginary. None of the Applicants annexed a certificate of title or lease to evidence ownership of the sub-divisions they claimed. Further, joinder under Order 1 Rule 10(2) is only available in pending proceedings; once judgment has finally determined the rights of the parties, joinder serves no purpose.