REPUBLIC OF KENYA.

IN THE CHIEF MAGISTRATE’S COURT AT NYAHURURU.

MC-ELC E 292 OF 2018.

TALENT INTERNATIONAL COMMUNNITY ….. ..... PLAINTIFF/APPLICANT.

-VERSUS-
MARY NJERI KIMANI…....... ….. ......….. .....….. ..... 1ST DEFENDANT.
CAROLINE ACHISTA KIMANI….. .....…… .....….. ..... 2ND DEFENDANT.
PENNIHAH WANJIRU MWANGI… ……….. ………. ….. 3RDDEFENDANT.
VIGINIA ACHWA….. ………..… ………… ………. ….. 4TH DEFENDANT.
-AND-
JULIUS KIMANI KINAGI…..……… …………. PROPOSED INTERESTED PARTY.

WRITTEN SUBMISSIONS.
(In support of the Notice of Motion Application dated 01.11.2021).

1. The said Application seeks for inter alia that the honorable court sets aside, reviews and/
or varies it’s judgment delivered on the 27.05.2021 to allow for the enjoinment of the
Proposed Interested Party as a party to this suit.

Brief Facts of the cases.

2. The Plaintiff/ Applicant filed the primary suit seeking for inter alia the eviction of the
Defendants who had encroached on the parcel of land described as Land Reference
number NYANDARUA/KIRIMA/ 4475 (“the suit land”).

3. The Proposed Interested Party was among the encroachers but had been omitted as a
Defendant in the primary suit following his undertaking to voluntarily vacate the suit
land.

4. The court pronounced itself on the issue of ownership of the suit land declaring the
Applicant as the sole absolute proprietor and all the Defendants ordered to vacate the
suit land.

5. The Proposed Interested Party upon learning of entry of the above judgement reneged
on his previous undertaking to vacate the suit land and now asserts purchaser’s interests
over a portion of the suit land.

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 Issues for determination.
6. The single issue for consideration is whether the Applicant has met the threshold for the
joinder of the Proposed Interested Party as a party to this suit after entry of the judgment
dated 27.5.2021.

Whether the court has residual jurisdiction to review it’s decision dated 27.5.2021.
7. It is the Applicant’s humble submission that the honorable court has residual jurisdiction
to re-open and rehear a concluded matter where the interest of justice so demands.

8. The Court of Appeal in Kamau James Gitutho & 3 others v Multiple Icd (K) Limited
& another [2019] eKLR quoted the finding in Benjoh Amalgamated Limited & Another
vs Kenya Commercial Bank Limited [2014] eKLR stated:-

“It is our finding that this Court not being the final court has residual jurisdiction to
review its decisions to which there is no appeal to correct errors of law that have
occasioned real injustice or failure or miscarriage of justice thus eroding public
confidence in the administration of justice. This is jurisdiction that has to be exercised
cautiously and only where it will serve to promote public interest and enhance public
confidence in the rule of law and our system of justice.”

9. The court in Kamau James Gitutho (supra) while quoting the decision in the English case
of Taylor & Another vs Lawrence & Another [2003] QB 528 bserved that: -

“English courts recognize that such residual jurisdiction kicks in where it is

established that significant injustice has occurred due to a decision made by the court
and there is no alternative remedy to correct the error. In such circumstances, they
argued, a court is allowed to re-open proceedings in a matter which had already
been heard and determined”.

10. No appeal has been lodged against the judgement dated 27.5.2021. The omission of the
intended interested party has occasioned injustice on the Applicant as they are unable to
enjoy fruits of the regular judgment as the Proposed Interested Party remains in
occupation interfering with the Applicants right to property under Article 40 of the
Constitution of Kenya
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 Who is an interested party to a suit ?

11. Black’s law dictionary defines an interested party to mean :-

“A party who has a recognizable stake (and therefore standing) in a matter”

12. The Constitution of Kenya (Protection of Rights and Fundamental Freedoms)

Practice and Procedure Rules, 2013 (hereafter the “Mutunga Rules”)thus:

“Rule 2 of the Mutunga Rules defines an interested party as a person or entity that
has an identifiable stake or legal interest or duty in the proceedings before the Court,
but is not a party to the proceedings or may not be directly involved in the litigation.”

13. The Supreme Court in thecase of Trusted Society of Human Rights Alliance v Mumo
Matemo & 5 others [2014] eKLR defined an Interested party to mean;

“…Consequently, an interested party is one who has a stake in the proceedings,

though he or she was not a party to the cause ab initio. He or she is one who will be
affected by the decision of the Court when it is made, either way. Such a person feels
that his or her interest will not be well articulated unless he himself or she herself
appears in the proceedings, and champions his or her cause…”

14. The Proposed Interested Party in response to this Application depones that he purchased
a portion of the suit land from the Applicant, which is denied in toto by the Applicant.

15. The Proposed Interested Party is also in occupation of the suit land and is unwilling to
vacate unless compelled by orders of this honorable court necessitating his joinder as
party.

16. It is the Applicant’s humble submission that from the foregoing, the Proposed Interested
Party has a definitive legal interest / stake in the outcome of suit and it is in the interest of
justice that he is admitted as a party at this stage to avert future re-litigation on issue of
ownership of the suit land between the Proposed Interested Party and the Applicant.

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 Whether the Intended Interested party should be enjoined as a party to this suit.
17. On the issue of joinder of parties , the Court of Appeal in JMK v MWM & another [2015]
eKLR observed:-

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 effectually 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.

18. The principles set out by the Supreme Court in Francis Karioki Murutetu & another
v Republic & 5 others (2016) eKLR demonstrate elements applicable for enjoinment
of party to a suit. This are:-

a. The personal interest or stake that a party has in the matter must be set out in the
application. The interested must be clearly identifiable and must be proximate
enough, to stand apart from anything that is merely peripheral.
b. The prejudice to be suffered by the intended interested party in case of non-joinder,
must also be demonstrated to the satisfaction of the Court. It must also be clearly
outlined and not something remote.
c. Lastly, a party must, in its application, set out the case and/or submissions it intends
to make before the Court, and demonstrate the relevance of those submissions. It
should also demonstrate that these submissions are not merely a replication of what
the others parties will be making before the Court.
18. Further in Carret Peter Mayor v Co-operative Bank of Kenya & another [2022] eKLR
the Court relied on the finding of the Court of Appeal in the case of EG v Attorney
General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR shedding
more light on the application of this principle held as follows:

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 “ Also, a joinder of a party is not an automatic right, but one which is granted upon
exercise of the discretion of the court concerned. Nonetheless, the court exercises such
discretion under defined parameters, that is, it must be satisfied that: -

a. The intended party has a personal interest or stake in the matter in question;
and that interest is clearly identifiable and proximate enough and not merely
peripheral.
b. The intended party’s presence would enable court to resolve all the matters in
the dispute.
c. The intended party would suffer prejudice in case of non-joinder.
d. The joinder of the intended party will not vex the parties or convolute the
proceedings with unnecessary new matters and grounds not contemplated by
the parties or envisaged in the pleadings.”

19. It is the Applicants humble submission that the joinder of the Proposed Interested Party
will help bring to finality the issue of ownership of the suit land and that the alleged
purchaser interest counter-claim by the Proposed Interested Party will be better
ventilated by his enjoinment to this suit.

20. We humbly submit that it is in the interest of justice that the Application dated 01.11.2021
is allowed as the Applicant has met the threshold to warrant him the orders sought.

Most Obliged you’re honor.

DATED at Nyahururu this day of 2022.

MUCHANGI PATRICK & CO.

ADVOCATES FOR THE PLANTIFF/APPLICANT

DRAWN & FILED BY:- TO BE SERVED UPON:-

NDEGWA WAHOME & CO.
MUCHANGI PATRICK & CO.
ADVOCATES.
ADVOCATES.
METKEI HOUSE, 1ST FLOOR,
MWANJO ARCADE BLD. 1ST FLR, RM 28.
P.O.BOX 1993-20300
P.O.BOX 1565-20300
NYAHURURU.
NYAHURURU.