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ELCDismissedNot stated in the judgment· [2025] KEELC 6498 (KLR)

NCBA Bank of Kenya Limited v Kirui (Environment and Land Appeal E042 of 2023) [2025] KEELC 6498 (KLR)

High Court of Kenya
1 October 2025
2,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling by M. A. Odeny, J of the High Court at Nakuru, delivered on 1st October 2025, on a Notice of Motion dated 14th May 2025 filed by the Respondent/Applicant, Nelly Chepkemoi Kirui. She sought joinder of Richard Koech as an interested party at the appellate stage, admission of five sets of new documents (correspondence between the Appellant and Richard Koech and an affidavit by directors of Rich-Ko Motors Bazaar), and striking out of the entire appeal as an abuse of process and in furtherance of fraudulent action. The Appellant's Principal Legal Counsel, Stephen Atenya, opposed the application, arguing that the allegations of fraud and forgery were never pleaded or adjudicated in the trial court, that the affidavit of a non-party was inadmissible without joinder, and that the appeal must be decided on the lower court record. The court framed two issues: whether Richard Koech could be joined as an interested party at the appellate stage, and whether new evidence could be introduced. Relying on Order 1 Rule 10(1), the JMK case, Tang Gas Distributors, the Supreme Court's decision in the BBI case (adopting the Trusted Society and Muruatetu principles) and Bellevue Development, the court held that while joinder at the appellate stage is possible, the applicant demonstrated no identifiable stake and no prejudice from non-joinder; the proposed party was known throughout the original suit but never joined, and the late application was a tactic to convolute the appeal. The application was also internally contradictory, seeking joinder while simultaneously seeking striking out of the appeal. The application was dismissed with costs to the Appellant/Respondent, and the parties were directed to fast-track the appeal for hearing.

Key legal issues

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01

Whether a non-party can be joined as an interested party at the appellate stage

Holding

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.

Reasoning

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.

p. 5
02

Whether new evidence can be introduced at the appellate stage

Holding

Not admitted; the application failed as the documents were communications between the Appellant and the proposed interested party, not touching the Respondent.

Reasoning

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.

p. 4
03

Internal contradiction of the application - joinder versus striking out of the appeal

Holding

The application was contradictory and confusing: it sought joinder of an interested party while simultaneously seeking the striking out of the entire appeal.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Respondent/Applicant's Notice of Motion dated 14th May 2025 is dismissed
  2. 2.Costs of the application to the Appellant/Respondent
  3. 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

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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, "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.