Macharia v Gakera & another

ii. The Intended 2nd Defendant has entered the suit property, carried out extensive excavation and fenced of the parcel. iii. The Intended 2nd Defendant intends to construct a petrol station on the suit property and the commencement of construction works and the intended alienation of the suit property will occasion considerable loss to the Plainti and render the suit herein nugatory. iv. The defendants are acting in collusion and in total disregard of the court order issued on 01/09/2025 with a clear intention of defeating the Plainti’s claim in the suit property. v. It is only fair and just that the Intended 2nd Defendant be joined in the suit and an interim order be issued to restrain the Intended 2nd Defendant from further interfering with the suit property pending the hearing and determination of the suit. vi. The Application is made in the interest of justice. 3. The application was served on the respondents, and only the 2nd respondent, led its response through the Replying Adavit of Millicent Ngetich, its head of legal services, sworn at Nairobi on 20/02/2026, and grounds of opposition dated 24/02/2024. There was no response from the 1st respondent. 4. Be that as it may, as a court of law, I have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. As held by the Supreme Court of Kenya in Gideon S. Konchellah Vrs Julius L. Sunkuli & 2 others [2018] eKLR, it behoves the court to be satised that prima facie, with no objection, the application is meritorious and the prayers may be granted. The court is thus under a duty to look at any points of law, such as any jurisdictional impediment, which might render the application a non-starter. I see no jurisdictional issue herein. 5. The grant or refusal of an application for joinder involves the exercise of a discretion. However, such discretion must be exercised judicially and upon reason, rather than arbitrarily or capriciously. A relevant provision addressing the joinder of parties, is Order 1, Rule 10(2) of the CPR which provides 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 enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 3. The Court of Appeal in JMK v MWM & another [2015] eKLR succinctly stated as follows: Order 1 Rule (10) (2) of the Civil Procedure Rules empowers the court, at any stage of the proceedings, upon application by either party or suo motu, to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court eectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party. Commenting on this provision, the learned authors of Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 P. 887), state that: “The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.” This Court adopted the same approach in Central Kenya Ltd. V. Trust Bank & 4 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/998/eng@2026-09-08 2

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Others, Ca No. 222 OF 1998, when it armed that the guiding principle in amendment of pleadings and joinder of parties is that: “all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.” …In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 Rule 10(2) of our Civil Procedure Rules, in Tang Gas Distributors Ltd v Said & Others[2014] EA 448, stated that the power of the court to add a party to proceedings 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. 7. Applying the above principles, and given that the hearing herein is yet to commence, I do hereby allow the application for joinder of the 2nd respondent herein and as prayed for in prayer 2. The plainti shall therefore le his amended plaint to reect this joinder. Since leave have just been granted, and the joinder and the amendment are yet to be eected, the 2nd respondent is therefore still deemed a legal stranger to these proceedings and no interlocutory order or orders can be issued against such a stranger till it is formally admitted into these proceedings via the intended amendment. In short, interim orders cannot be made against an intended party who is yet to be formally joined as a party to the suit. A court does not have jurisdiction over a stranger to the suit. 8. I however do hereby allow the application as per prayer no. 5, as there was no serious opposition to the prayer. I thus do hereby allow the application in terms of prayers 2 and 5 only and as follows: a. Leave be and is hereby granted to the Plainti to join the intended 2nd defendant to the suit herein and to amend the Plaint accordingly. b. The 1st Defendant (Charles Mboga Gekara) be and is hereby summoned to appear before the Honourable Court and show cause why he should not be cited for contempt of court and punished for disobedience of the court order issued on 01/09/2025. c. Costs of the application be in the cause. DATED, SIGNED AND DELIVERED AT NAKURU, VIRTUALLY, IN OPEN COURT THIS 08TH DAY OF SEPTEMBER,2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Plainti’s counsel: Gachimu 1st Defendant’s Counsel:N/A 2nd Intended 2nd Defendant’ s Counsel: Kerubo Plainti/ applicant: N/A 1st Defendant/ Respondent: N/A https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/998/eng@2026-09-08 3

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