Kisiangani & 3 others v Steve Fwesa t/a Travellers Hotel Plaza & another

Applicants Summary of Facts 4. The proposed interested party/applicant in her supporting adavit stated that she is the daughter to the deceased, one Peter Koinange Kisiangani (Deceased) and that the plainti is her eldest step brother. She stated that she has a great interest in the suit property in that the same was sold by all her family members including the 1st plainti who was given his share and transferred with the blessings of all family members to the 1st defendant. She stated that the plainti duly received his share of the proceeds of sale of the suit property herein, just like the rest of her siblings. She said that it is only fair that she be joined as party in this suit. Plainti/Respondent’s Response in Opposition to the Said Application. 5. In opposition to the said application, the plaintis/Respondents led grounds of opposition raising the following issues; i. The applicant is a stranger to the estate of the deceased as she is not an administrix ii. The plaintis brought the suit as legal administrators of the estate of the deceased and the applicant is not one of them iii. That applicant has not disclosed any role to play whether to be enjoined as the plainti or defendant and could just be a joyrider. iv. The whole application is unfounded, lacks merit and should be jettisoned with costs. Legal Analysis and Decision 6. I have considered the application, the supporting adavit, the grounds of opposition and the relevant law. The gist of this application is that the proposed interested party wishes to be added to this suit as an interested party and that her presence before court is necessary in order to enable the Honourable court to eectually and completely adjudicate upon and settle all questions involved in the suit. She stated that she has great interest in the suit property which belonged to their late father Peter Koinange Kisianga’ni (deceased) and which property was authorized and/or sanctioned to be sold by the deceased’s wife and all the children of the late Peter Koinange Kisianga’ni (deceased) including the 1st plainti 7. According to the applicant, the suit property Land parcel No. Webuye Municipality Plot No. 7996/78A belonging to their deceased father was sold by all the family members to the 1st defendant and each member was given his/her share, including the 1st plainti. 8. Order 1 Rule 10(2) of the Civil Procedure Rules provides the guiding principles for joinder of a party and states as follows; ‘’The court may at 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 that the name of any party improperly joined, whether as plainti or defendant, be struck out, and that 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 eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.’’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22205/eng@2023-12-13 2

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9. It is clear from the provisions of the law that, before a party is added to a suit, the court must evaluate the importance of such a party and his/her relevance to the just determination of the suit. In the case of JMK V Mwm & Another [2015] eKLR the Court of Appeal held; “ ‘’…can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been nally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage.’’ 10. Again in Joseph Njau Kingori v Robert Maina Chege & 3 Others [2002] eKLR, Nambuye J (as she then was) enumerated four aspects to consider before joining a party to a suit as follows; i. Whether the applicant is a necessary party? ii. Whether he is a proper party? iii. Whether there is a relief owing from him to the plainti? And iv. Whether the ultimate order or decree cannot be enforced without his participation in the proceedings? 11. Coming to the present application, the applicant contends that the subject matter of this suit being Land parcel No. Webuye Municipality Plot No. 7996/78A belonged to their late father Peter Koinange Kisiangani (deceased) and sold to the 1st defendant with the authority of his wife and all family members, including the 1st plainti and the proceeds shared amongst all the family members. The proposed interested party/applicant is not seeking any relief or share from the suit property which she admits was lawfully and procedurally sold to the defendant herein. 12. Applying the principles set out in the cited cases above, I nd that the proposed interested party/ applicant is not a proper and necessary party as there is no relief owing from him to the plainti and the ultimate order/decree can be enforced without her participation in these proceedings. The proposed interested party/applicant’s concern is that she privy to some factual information how the suit land was sold to the 1st defendant with authority and consent of all family members and the proceeds shared amongst all family members. In my view, such information can be given to the court without necessarily being joined as a party to these proceedings. The applicant can give such information in any capacity other than being a party to this suit. 13. In view of the matters aforesaid, I nd the Chamber Summons application dated 7th July 2023 devoid of merit and the same is hereby dismissed with costs. READ, DATED, DELIVERED AND SIGNED IN THE OPEN COURT/VIRTUALLY AT BUNGOMA THIS 13TH DECEMBER, 2023 HON.E.C CHERONO ELC JUDGE In the presence of; 1. Applicant/Advocate-absent 2. Respondent/Advocate-absent 3. Okwaro C/A https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22205/eng@2023-12-13 3

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