NCBA Bank of Kenya Limited v Kirui (Environment and Land Appeal E042 of 2023) [2025] KEELC 6498 (KLR)
The bottom line
#Kenya's High Court refused to add a new party and new evidence to an appeal, calling the late application a tactic to delay it.
What this practically means
#Executive summary
#Key legal issues
#Whether a non-party can be joined as an interested party at the appellate stage
The application failed because the proposed interested party had no identifiable stake and no prejudice from non-joinder was demonstrated; parties were aware of Richard Cheruyiot Koech throughout the original suit but chose not to join him.
Order 1 Rule 10(1) permits joinder of a necessary party at any stage while proceedings are pending. However, the principles in Trusted Society of Human Rights Alliance v Mumo Matemu, affirmed in Muruatetu, require a formal application demonstrating an identifiable, proximate interest, prejudice from non-joinder, and the distinct case the intended party intends to make. None was demonstrated; the late joinder appeared to be a tactic to convolute the appeal.
Whether new evidence can be introduced at the appellate stage
Not admitted; the application failed as the documents were communications between the Appellant and the proposed interested party, not touching the Respondent.
The Respondent sought to introduce correspondence between the Appellant and Richard Koech. The court found the parties were aware of the proposed party and could have joined him in the original suit to produce the documents; introducing them at the appellate stage was a dilatory tactic. The court also noted the internal contradiction of seeking joinder while simultaneously seeking to strike out the appeal.
Internal contradiction of the application - joinder versus striking out of the appeal
The application was contradictory and confusing: it sought joinder of an interested party while simultaneously seeking the striking out of the entire appeal.
The court observed that if the appeal were struck out, there would be no proceedings in which the joinder could be anchored, rendering the twin prayers incoherent. This contradiction weighed against the exercise of the court's discretion in the applicant's favour.
Legal principles established
#- An applicant for joinder of an interested party post-judgment and at an appellate stage must demonstrate a clearly identifiable, proximate stake in the matter and the prejudice to be suffered by non-joinder
- The power of the court to add a party to proceedings can be exercised at any stage, but only while proceedings remain pending and live
Court orders
#- 1.The Respondent/Applicant's Notice of Motion dated 14th May 2025 is dismissed
- 2.Costs of the application to the Appellant/Respondent
- 3.Parties to fast-track the appeal for hearing and determination
- On appeal from
- Subordinate court (trial court) - not specified in the judgment
- Jurisdiction invoked
- Appellate jurisdiction over the subordinate court's decision; joinder governed by Order 1 Rule 10(1) of the Civil Procedure Rules and Article 50 of the Constitution raised in submissions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NCBA Bank of Kenya Limited v Kirui (Environment and Land Appeal E042 of 2023) [2025] KEELC 6498 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6498/eng@2025-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.