Adan Ali Hassan v Choka Chelule & Co Advocates

Defendant’s Response 5. The defendant’s replying affidavit was in response to both the application under consideration and the plaintiff’s application dated 6.2.2025 seeking release of the original title to the subject property to his advocates. 6. The defendant confirmed that the 1st and 2nd applicants and the plaintiff are tenants in common of the subject property, each entitled to 1/3 of the property. They entered into an agreement for sale of property for Kshs 20,600,000/-. The purchasers paid a deposit of Kshs 8,000,000/- and left a balance of Kshs 20,600,000/-. 7. The defendant was the purchasers’ advocate in the sale transaction, and he issued an undertaking to pay the balance. 8. A dispute ensued after the purchasers failed to pay the balance of the purchase price within the agreed timelines. The defendant filed HCCC 81 of 2016 against the purchasers, claiming the balance. Judgment was entered in its favour for Kshs 20,600,000/-. The original title deed was released to the defendant in execution of the decree. 9. The purchasers entered a consent dated 22.7.2019 for the subdivision of the property to cater for the amount paid and the sale of the 100-acre portion of the property to cater for the balance for onward transmission to the vendors. 10. The defendant entered a consent with the plaintiff for the sale of the property and that the 1/3 portion to be paid to him. 11. The defendant stated that the applicants have since settled their interest and found a purchaser for their interest which would discharge the undertaking on their part, and there should be an order for the property to be subdivided, and the two thirds of the property be transferred to the purchaser. 12. The defendant asserted that the plaintiff has insisted on denying the other parties their share and wants the whole property to himself, hence his application for the release of the original title to his advocates. 13. The defendant contended that if the plaintiff’s application were successful, he would not be discharged from his undertaking to the three parties to secure payment to them as he would still be obligated to the applicants. He therefore urged that the interests of all the parties should be taken into consideration. The Plaintiffi ’s Response 14. The plaintiff argued that the applicants have not demonstrated any registered or equitable interest in the subject property capable of sustaining their claim for joinder at this stage of the proceedings. He also argued that they have not availed evidence of fraud, concealment or exclusion for their joinder. 15. The plaintiff submitted that the application fails to meet the threshold for joinder as they have not shown how their presence is necessary for effective and complete adjudication of the questions in the suit. 16. The plaintiff termed the application an abuse of the court process, misconceived, untenable and intended to derail the fair and final resolution of the proceedings. 17. The plaintiff highlighted that the other property’s owners did not participate in HCCC No 81 of 2016. He complained that the subject property has not been sold since 2019 and that there is no evidence that the applicants have secured a purchaser. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2853/eng@2026-02-26 2

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18. The plaintiff indicated that he is opposed to the proposal that he waits for payment upon the sale of the property as per the consent in HCCC No 81 of 2016. He submitted that the defendant subdivides the property at his costs so that he can have his own title deed and dispose it by himself. Analysis and Determination 19. The court may at any stage of the proceedings 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. Order 1 Rule 10(2) of the Civil Procedure Rules. 20. A person may be joined as a party in a proceeding: " " (i) because his presence will result in the complete settlement of all the questions involved in the proceedings; (ii) to protect the rights of a party who would otherwise be adversely affected in law; (iii) to prevent a likely course of proliferated litigation." Meme v Republic, [2004] 1 EA 124 21. The plaintiff asserted that the applicants have not demonstrated any registered or equitable interest in the subject property for their joinder. He did not expressly admit that he and the applicants are tenants in common of the subject property. 22. However, the plaintiff alluded to the fact that the applicants were the other owners of the property but, they failed to participate in HCCC No 81 of 2016. 23. From the pleadings, there are issues regarding execution of the judgment in the matter, and the plaintiff has sought the release of the original title to the property citing delay in effecting the sale. 24. I am satisfied that the joinder of the applicants is necessary for the complete settlement of the questions because they have a proprietary interest in the subject property. Disposal 25. The application dated 18.3.2025 is allowed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 26TH DAY OF FEBRUARY, 2026 ................................... F. GIKONYO M JUDGE In the presence of: Ms. Akinyi for Yusuf for Respondent. Omar for 1st & 2nd Intended Interested parties. CA - Ivan/Aggrey. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2853/eng@2026-02-26 3

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