Kenya Electricity Transmission Company Limited v Biego & 14 others; Bett & 2 others (Proposed Defendant)

CHERUTO TABLELEI BIREN .................................................... 15TH DEFENDANT AND JOYCELINE JEROP BETT .............................................. PROPOSED DEFENDANT GILBERT SAWE ............................................................... PROPOSED DEFENDANT GRACE JEPKETER KOGO ............................................ PROPOSED DEFENDANT RULING 1. Before me for determination is an application dated May 26, 2022 brought under section 1A, 1B,3A and 63 (e) of the Civil Procedure Act and order 1 rule 10 (2) of the Civil Procedure Rules seeking the following orders:i. This honourable court be pleased to grant leave to the applicants Joyceline Jerop Bett, Gilbert Sawe, William Kipkosgei Mosbei and Grace Jepketer Kogoi to be enjoined as 16th, 17th and 18th defendants in this suit. ii. The court be pleased to grant leave to the applicants to le pleadings in this suit. iii. Costs be in the cause. 2. The application is premised on grounds on the face of it and supported by adavits of Joyceline Jerop Bett, Gilbert Sawe, William Kipkosgei Mosbei and Grace Jepketer Kogoi. 3. The applicants deponed in their respective adavits that the 4th, 13th and 14th defendants extinguished their rights and interest over suit parcels of land upon sale of the same to the applicants. 4. As a result the applicants have a legitimate interest in the suit properties hence the need to be enjoined as defendants. 5. The application was opposed vide grounds of opposition dated October 3, 2022 and led by the plainti/respondent. The plainti stated that the instant application presented conict of interest between the defendants and intended defendants (applicants herein). That this was contrary to the Code of Standards of Professional Practice and Ethical conduct of the Law Society of Kenya, 2016. 6. On September 22, 2022 this court directed that the application be canvassed by way of written submissions. Both parties complied by ling their respective submissions. 7. Counsel for the applicants submitted that the applicants had shown their interest in the sit parcels vide the sale agreements annexed to the instant application. That the applicants are necessary parties and their enjoinment would enable the court eectively and completely adjudicate upon all issues in this suit. They relied on order 1 rule 10 (2) of the Civil Procedure Rules and the case of Gladys Nduku Nthuki -vs- Letshego Kenya Limited; Mueni Charles Maingi (intended plaintiff) 2022 eKLR to buttress this position. 8. The plainti/respondents Counsel on the other hand submitted that the actions of Counsel for the applicants to le this application while representing the defendants in this suit amounted to breach of the Code of Standards of Professional Practice and Ethical Conduct of the Law Society of Kenya, 2016 which under rules 95 and 96 prohibits representation of clients with conicting interest over the same matter. Counsel relied in the case of Abdirahman Husseinwaytan Mohammed -vs- Independent Electoral and Boundaries Commission and 4 others (2018) eKLR. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14917/eng@2022-11-17 2

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Analysis and Determination: 9. Upon perusal of the application, adavits in support, plainti/respondent grounds of opposition as well as submissions led by respective parties, the sole issue for determination by this court is whether the applicants have made a case to enable this court enjoin the intended defendants as a party and further grant them leave to le pleadings. 10. Under order 1 rule 10 (2) of the Civil Procedure Rules this court has discretion, either on application by a party to a suit or its own motion, order the joining in top the suit of any party or striking out of a party improperly joined to the suit. Order 1 rule 10 (2) of the Civil Procedure Rules provides that;“ The court may of any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order the name of any party improperly joined, whether as a plainti or defendant, be struck out and the name of any person who ought to have been joined whether as plainti or defendant or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 11. Another provision relevant in this application is order 1 rule 3 of the Civil Procedure Rules which is drawn as follows: “ All persons may be joined as defendants against whom any right to relief in act or transaction or series of acts of transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.” 12. My understanding of the provisions cited herein above is that the court is empowered order a joinder of a defendant if the claim against him arises out of the same act or transaction complained of by the plainti. In other words the plainti ought to have a case against the intended defendant. 13. In the present case, the applicants argument is that on diverse dates, they purchased the suit parcels from the 4th, 13th and 14th defendants who are the registered owners of the said properties. That as a result they have benecial interest over the properties which the plainti are seeking way leave and in exchange give compensation to the owners of the suit properties. 14. In my view, it is necessary to bring on board the applicants, who claim, benecial interest over suit properties to enable the court eectively determine the issue of ownership as well as arbitrate over issues raised by the plainti. I nd so because even if after hearing the suit, the court was to grant the plainti the orders sought, those orders would not be enforced the applicants and not the 4th, 13th and 14th defendants. It would also be unjust to determine issues aecting the suit properties without hearing the Applicants, who claim interest thereof. 15. On the issue of conict, once the applicants are joined in the proceedings, they will be all defendants, hence the issue of conict of interests does not arise. 16. That said, counsel for the respondent raised an issue of delay in ling the instant application. I do think this is so. This suit was led in January 2021 and the instant application led in Ma 2022 1 year, 5 months later. This delay is not in ordinate furthermore, hearing of this suit had not taken o. Also the plainti has not suciently demonstrated prejudice they will suer if this application is allowed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14917/eng@2022-11-17 3

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17. In order to adjudicate upon all issues and do substantive justice to all parties, I nd the application dated May 26, 2022 meritorious and allow the same. 18. Orders accordingly. DATED AT KAPSABET THIS 17TH NOVEMBER, 2022. HON. M. N. MWANYALE, JUDGE In the presence of; Mr. Lagat holding brief for Ms. Koech for Defendant/Applicant No appearance for Ms Gezemba for Plainti https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14917/eng@2022-11-17 4

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