Trv Towers Management Ltd & 2 others v Ncba Bank Kenya Plc

4. The background of the matter is that the Plaintiffs instituted a suit dated 15th May 2025 against NCBA Bank PLC, seeking orders for the removal of restrictions allegedly unlawfully placed by the Defendant Bank on their bank accounts. The Plaintiffs contend that the restrictions have interfered with their operations as management companies responsible for maintaining and running certain commercial properties. 5. The Applicants, vide the present application, now seek to be joined as Defendants in the matter, contending that the restrictions were placed at their instance and that they possess relevant information and interests necessary for the full and effective determination of the dispute. 6. The application proceeded by way of written submissions. The Applicants’ Counsel V.H. Awour & Company Advocates filed submissions dated 6th July 2025. The Respondents, on the other hand, filed their dated 31st July 2025 through the law firm of Tito & Associates. The Applicants’ Submissions 7. The Applicants submitted that they are necessary parties to these proceedings as they were, at all material times, directors and authorized signatories to the Plaintiffs’ bank accounts, and that the restrictions placed by the Defendant Bank arose from their complaints regarding the mismanagement of the companies and the misuse of the accounts by the current directors. 8. They refute the Respondent’s allegations that the Intended 2nd Defendant had, on 13th October 2023, resigned as a Director of the Company and therefore ceased to be a signatory of the subject bank account. According to the Intended 2nd and 3rd Defendants, the alleged resignation was done under duress from the Intended 4th Defendant and his cronies, and was still a subject before the Registrar of Companies. 9. They argue that their participation in the proceedings is necessary to enable the Court to determine the real controversy and to safeguard their interests as directors and shareholders of the Plaintiff companies. They rely on Order 1 Rule 10(2) of the Civil Procedure Rules and urge that their presence is essential for the effectual and complete adjudication of the issues in dispute. 10. In support of their arguments, the Applicants cited, among others, the cases of Eunice Wangui Mbogo & Another -vs- Margaret Mbucu Mathuri (Sued as Administrator of Adriano Mathuri Ngondi) & 2 Others [2022] eKLR, and maintained that their joinder is necessary for the effectual and complete adjudication of the issues in dispute. The Plaintiffi/Respondents’ Submissions 11. The Plaintiffs and the Intended 4th Defendant/Respondent oppose the application, submitting that the Applicants have no interest or stake in the proceedings, which are limited to the question of whether the Defendant Bank unlawfully placed restrictions on the Plaintiffs’ accounts. 12. They argue that no relief has been sought against the Applicants, and the issues they raise concerning alleged mismanagement of funds and internal company affairs are extraneous to the subject matter of the suit. The Plaintiffs further contend that the Applicants voluntarily resigned as directors, and that pursuant to resolutions passed on 12th July 2023, the signing mandate on the accounts was revised, removing the Applicants as signatories. 13. It is further the Plaintiff’s position that the Intended 2nd Defendant resigned as a Director of the Plaintiffs on 13th October, 2023, and was therefore, removed as a signatory of the Plaintiffs’ accounts on 12th July, 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16497/eng@2025-10-15 2

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14. They submit that the Applicants’ joinder would unnecessarily complicate and delay the proceedings by introducing collateral issues relating to directorship and internal corporate governance. The Plaintiffs rely on Order 1 Rule 10(2) of the Civil Procedure Rules, Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR, and Erdemann Property Limited v Co-operative Bank (K) Limited; Lake Basin Development Authority (Intended Interested Party) [2024] eKLR, among others, to argue that the Applicants are neither necessary nor proper parties to the suit. 15. The Respondents further urged that the Court should decline the application for joinder as it serves no useful purpose and is brought in bad faith with the intention of derailing the expeditious determination of the real issues in controversy. They also seek costs under Section 27 of the Civil Procedure Act, relying on Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR, where the Court affirmed that costs follow the event. The Respondents’ Submissions 16. The Plaintiffs and the Intended 4th Defendant/Respondent oppose the application, submitting that the Applicants have no interest or stake in the proceedings, which are limited to the question of whether the Defendant Bank unlawfully placed restrictions on the Plaintiffs’ accounts. 17. They argued that no relief has been sought against the Applicants, and the issues raised by the Intended 2nd and 3rd Defendants concerning alleged mismanagement of funds and internal company affairs are extraneous to the subject matter of the suit. The Plaintiffs further contended that the Applicants voluntarily resigned as directors, and that pursuant to resolutions passed on 12th July 2023, the signing mandate on the accounts was revised, removing the Applicants as signatories. 18. They submitted that the Applicants’ joinder would unnecessarily complicate and delay the proceedings by introducing collateral issues relating to directorship and internal corporate governance. 19. The Plaintiffs relied on Order 1 Rule 10(2) of the Civil Procedure Rules, and cited the cases of Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR, and Erdemann Property Limited v Cooperative Bank (K) Limited; Lake Basin Development Authority (Intended Interested Party) [2024] eKLR, among others, to argue that the Applicants are neither necessary nor proper parties to the suit. 20. The Respondents further urged the Court to decline the application for joinder as it serves no useful purpose and is brought in bad faith with the intention of derailing the expeditious determination of the real issues in controversy. They also seek costs under Section 27 of the Civil Procedure Act, relying on Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR in support thereof. Analysis and Determination 21. Having carefully considered the Application, the affidavits and annextures filed by the parties, as well as their respective submissions and authorities, the main issue for determination is whether the Intended 2nd and 3rd Defendants have satisfied the legal threshold for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules. 22. The procedural law on joinder of interested parties is Order 1 Rule 10 of the Civil Procedure Rules, 2010. It provides for the addition of “a necessary” party. It provides that “The court may at any stage of the proceedings, either upon or without the application of either party…order that…the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16497/eng@2025-10-15 3

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23. That provision empowers the Court, at any stage of the proceedings, to order that the name of any person who ought to have been joined, or whose presence before the Court may be necessary for the effectual and complete adjudication of all questions involved in the suit, be added as a party. 24. The principles governing joinder are well settled. In Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR, the Court held that for a party to be joined, it must be demonstrated that: 25. i. The intended party has a legal or equitable interest in the subject matter of the suit; ii. That interest is likely to be affected by the outcome of the suit; and iii. The presence of the intended party is necessary for the Court to completely and effectually adjudicate upon all questions in the suit. Similarly, in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR, the Court of Appeal underscored that the purpose of joinder is not to expand the scope of litigation but to ensure that all persons whose participation is necessary to resolve the dispute are before the Court. The Court was clear that “no person can be a defendant unless the plaintiff claims some relief, even if only a declaration, against him.” The Court stated that: “ O’Hare & Hill’s Civil Litigation, 7th Edition (1996) at page 101 opines that one cannot be added as a plaintiff unless one gives one’s consent in writing. In contrast, anyone can be joined as a defendant even against his wishes. However no person can be a defendant unless the plaintiff claims some relief, even if only a declaration, against him. The general rule of practice is that the plaintiff is “dominus litis.” This means that he is entitled to choose the defendants against whom he wishes to pursue his claim for the relief or remedy he seeks, and that he cannot be compelled to proceed against other persons whom he has no desire to sue. The doctrine of “dominus litis” does not however extend to the joinder (or impleading) of parties. This is because the court has a duty and the power to add a person who is not a party to the action as originally constituted as a defendant even against the will of the plaintiff, whether on the application of the defendant or of the non-party in order for the real matter in dispute to be determined. The non-party (or intervener) must show that he has interest in the matters in dispute to be determined in the suit.” 26. Applying these principles to the present case, it is not in dispute that the Plaintiffs filed the suit against the Defendant Bank seeking orders for the removal of restrictions allegedly placed unlawfully on their bank accounts. The Court noted that the Plaintiffs have not sought any relief against the Applicants, nor has any allegation of wrongdoing been made against them in the pleadings. The subject of the suit, therefore, concerns the legality or otherwise of the Bank’s action in restricting the accounts, and whether the same was justified within the banker-customer relationship. 27. The Applicants contend that the restrictions were placed at their instance, and that they have an interest in the management and operation of the bank accounts by virtue of their positions as former directors or shareholders. However, the question before this Court is not the internal governance or management of the Plaintiff companies, but rather the propriety of the restrictions imposed by the Defendant Bank. The issue of company directorship, signatory mandates, or the use of company funds is collateral to the dispute presented before the Court. 28. The Respondent has placed before this Court resolutions and documents showing that the Applicants either resigned or were removed as directors and signatories to the Plaintiffs’ accounts. Those facts have not been controverted by credible evidence. Even assuming that the Applicants have a continuing interest as shareholders, such interest does not, in and of itself, make them necessary parties to this suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16497/eng@2025-10-15 4

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As was observed in Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55, a party is not to be joined merely because they may be affected by the outcome of the case; they must be necessary in the sense that the Court cannot effectually and completely adjudicate upon the matter in their absence. 29. In the Court’s view, the issues raised by the Applicants relating to corporate management, control, and alleged misappropriation of funds, if any, fall within the purview of company law and the mechanisms provided under the Companies Act, 2015. They may be pursued through derivative or other appropriate proceedings before the proper forum. To import those issues into the present suit would expand the scope of the litigation beyond its intended purpose and introduce matters extraneous to the cause of action as pleaded. 30. It also bears emphasis that the Plaintiffs, being limited liability companies, are separate legal entities distinct from their shareholders and directors. The right to operate their bank accounts, and any dispute arising therefrom, lies between the companies and their banker. The Applicants have not demonstrated how their personal participation is indispensable for the resolution of that banker– customer dispute. 31. Allowing joinder of the proposed defendants in the present case would, in my view, introduce collateral questions foreign to the cause of action in the present case, and would frustrate the just, expeditious, and proportionate disposal of the matter contrary to the overriding objectives set out in Sections 1A and 1B of the Civil Procedure Act. 32. The Court aligns with the observation in Republic v Kwale County Land Registrar & another; Abshir & 2 others (Intended Interested Parties) [2022] eKLR, that joinder should be declined where it would unnecessarily delay and complicate proceedings or introduce unrelated causes of action. The Court stated that: “ But, joinder of parties may be refused where such joinder would lead into practical problems of handling the existing cause of action together with the one of the party being joined, is unnecessary or will just occasion unnecessary costs on the parties in the suits – or just being a nuisance on rocking the boat from the bottom. In other words, joinder of parties would be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from the existing cause of action or the relief. The determining factor in joinder of parties would be a common question of fact or law would arise between the existing and the intended parties. (See the case of “Lucy Nangari Ngigi & 128 others v National Bank of Kenya Limited & another (2015) eKLR”.” 33. In the circumstances, the Court finds that the Applicants have not demonstrated any direct or substantial interest in the subject matter of the suit sufficient to justify their inclusion as Defendants. The dispute as presently framed can be effectually and completely determined between the existing parties — the Plaintiffs and the Defendant Bank — without the participation of the Applicants. 34. Accordingly, the Chamber Summons application dated 28th May 2025 is therefore found to be without merit and is hereby dismissed with costs. 35. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 15TH OCTOBER 2025 ADO MOSES https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16497/eng@2025-10-15 5

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JUDGE In the presence of: C/A – Moses Ms, Owuor……. for the Respondents Awuor…………..for the Applicants https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16497/eng@2025-10-15 6

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