1.What is before me is the Notice of Motion dated 18th February, 2022 filed by the Interested Party seeking to be joined to this Appeal as an Interested Party. The main ground on which the application is premised is that he bought a portion of land parcel number Nyaribari Chache/B/B/Boburia 1973 from the Respondent’s late father, George Harun Mokamba and that the Respondent has refused to transfer the said title to the Interested Party.
2.The application is also based on the Applicant’s Supporting Affidavit sworn on the 18th February, 2022 in which he depones that he was not aware of the suit in the Chief Magistrate’s Court otherwise he would have applied to be joined to the suit.
3.He contends that he bought a portion of the suit property measuring 50 feet by 50 feet on 23.3.2000 from George Mokamba Harun who was the father of the Respondent. He depones that he subsequently took possession of the suit property but soon after the demise of the vendor, the Respondent chased him and the Appellant away for the land and demolished his structure.
4.He further depones that on 12.5.2000 and 12.2.2017 the Respondent gave his written commitment to transfer a portion of the suit property to the Interested Party, but he has failed to do so despite being paid a further sum of Kshs.20,000. He prayed that he be joined to the Appeal to enable him propagate his claim together with the Appellant as their claims are similar.
5.The Respondent resisted the application through his Replying Affidavit sworn on the 16th March, 2022 in which he contends that the Applicant is a total stranger to him who has not demonstrated how would be affected by the decision of the court. He contends that he would be prejudiced if the Applicant is joined to the suit at the appellate stage as the Applicant had the opportunity to participate in the proceedings in the lower court if he so wished.
6.He further contends that the court cannot order a party to be joined to a concluded suit unless the judgment is set aside to allow for the participation of the party to be joined.
7.The application was disposed of by way of written submissions and both parties filed their submissions which I have considered.
Analysis and Determination
8.The only issue for determination is whether the Applicant should be joined to the Appeal as an Interested Party.The law on joinder of parties is set out under the provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules which provides as follows:
9.The court therefore has a discretion to add a party whose presence is necessary to assist the court in adjudicating all the questions involved in the suit even in the absence of an application by either of the parties. The emphasis here is whether that party will enable the court adjudicate all the issues in the suit. See Pius Mbugua Ngugi & 2 others v Chief Land Registrar & 7 others  eKLR.
11.In the case of JMK v MWW & Another (2015) eKLR the Court of Appeal held thus:This Court adopted the same approach in Central Kenya Ltd. v. Trust Bank & 4 Others, CA No. 222 OF 1998, when it affirmed that the guiding principle in amendment of pleadings and joinder of parties is that:
12.We would however agree with the Respondent that Order 1 Rule (10) (2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court. Sarkar’s Code, (supra) quoting as authority, decisions of Indian Courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings.
13.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  E.A 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 finally 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.
15.Order 1 Rule 10(2) in my view envisages a situation where the suit has not been heard and determined and that is why it provides for joinder of a party either as a Plaintiff of Defendant or a party whose presence before the Court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. (Emphasis added) Where a judgment has been entered, it is my considered opinion that a party cannot be enjoined to the proceedings unless the judgment is either revived and/or set aside in such manner as to accommodate the participation of the enjoined party.
17.Back to the instant case, the Applicant seeks to be joined to the appeal after the issues between the Appellant and the Respondent have been determined by the subordinate court. The said judgment has not been reviewed in a manner that would accommodate his participation in the appeal. The appeal is in respect of the issues that were determined between the Respondent and the Appellant and there is no compelling reason why the Applicant should be joined to the appeal as he has the option of instituting a separate suit against the Respondent subject to the Limitation of Actions Act.
18.In premises of the foregoing, the application lacks merit and it is hereby dismissed with costs to the Respondent.