1.What is before court for determination is the Intended Interested Party’s Notice of Motion Application dated the May 5, 2021 brought pursuant to Order 1 Rule 8 and 10(2) of the Civil Procedure Rules and section 1, 1A, 1B & 3A of the Civil Procedure Act. The Applicant seeks the following orders:1.That Nairobi City County Assembly Service Board be allowed to join in these proceedings as Interested Party.2.The costs of this Application be provided for.
2.The Application is premised on the grounds on the face of it and the supporting affidavit of Edward O. Gichana. It is the applicant’s contention that the defendant who is an employee of Nairobi County Assembly benefited from a mortgage facility that resulted in a Charge being registered in favour of Nairobi City County Assembly for the purchase of all that parcel of land known as Mavoko Town Block2/5304 and hence has an interest in the subject matter. It explains that errors occurred during the subdivision of the mother title and issuance of the new title deeds. It avers that the boundaries of all the properties that had been sold from the ‘mother parcel’ were erroneous to the extent that the actual boundaries on the parcel did not match the Surveyor’s map. Further, a Surveyor’s visit did reveal that the Plaintiff’s property known as Mavoko Town Block 2/5303 had been sandwiched between the defendant’s property and Mavoko Town Block 2/5302 but at the site, the same is non-existent. It reiterates that it is in the interest of justice that the applicant be enjoined in these proceedings so as not to be arbitrarily deprived of its property.
3The plaintiff opposed the application and filed a replying affidavit where he confirms being the registered owner of the parcel of land known as Mavoko Town Block2/5303. He avers that the defendant has admitted encroachment into his parcel of land in his pleadings. He contends that no Charge Facility which the applicant claims to have extended to the defendant has been annexed to the supporting affidavit. He states that the issue in contention herein does not affect the authenticity of title nor does it affect Title Number Mavoko Town Block 2/5304 in any capacity but the intentional act by the Defendant to encroach on Title Number Mavoko Town Block 2/5303. He avers that the Intended Interested Party has no business participating in these proceedings. He reiterates that theintended interested party’s financial interests are not threatened and allowing the instant application will prejudice him as well as his case.
4.The application was canvassed by way of written submissions
Analysis and Determination
5.Upon consideration of the Notice of Motion application dated the May 5, 2021including the respective affidavits, annexures and rivalling submissions, the only issue for determination is whether the intended interested party should be allowed to be joined in these proceedings.
8.Black’s Law Dictionary, 9th Edition, defines an ‘interested party’ as “A party who has a recognizable stake (and therefore standing) in a matter”.
9.In respect to joinder of a party to proceedings already in court, Order 1 Rule 10(2) of the Civil Procedure Rules stipulates inter alia:
13.On perusal of the pleadings herein, I note the plaintiff filed its plaint on January 28, 2021 where he sought for eviction orders as well as a permanent injunction restraining the Defendant or his agents or any other person claiming under him from interfering with land known as Mavoko Town Block 2/5303. From a cursory look at the Defence including Counter-claim, the defendant denied the Plaintiff’s claim and it emerged that Mavoko Town Block 2/5303 and Mavoko Town Block 2/5304 which belongs to the defendant were resultant subdivisions of Mavoko Town Block 343 and 344 that was initially owned by Stephen Muriu. The defendant in his Defence contended that there was an error during the subdivision which was brought to light that even though in the sketch map, the plaintiff’s suit property is sandwiched between the defendant’s land as well as Mavoko Town Block 2/5302, however the same was non-existent on site. Further, that the representative of the vendor one Charles Muriu Mwangi offered the plaintiff a vacant parcel of land to replace the lost one. The defendant has also sought for various prayers including an order for the Machakos District Land Registrar to carry out a resurvey with a view to reassigning the boundaries as per the current existing boundaries. I note the defendant has not denied that his parcel of land is Charged to Nairobi City County Assembly Service Board, the intended interested party. The plaintiff has also not denied that his parcel of land and the defendant’s parcel of land were resultant subdivisions of one title. From this analysis, it is evident that the main reason for the ….intended interested parties’ quest to be joined to this suit is to protect its rights as a Chargor of the defendant’s parcel of land.
14.Based on the facts as presented and relying on the legal provisions I have quoted while associating myself with the cited decisions, it is my considered view that the Intended interested party as a chargor of the defendant’s land has a stake in these proceedings and its involvement herein is hence necessary to enable the court effectually and completely adjudicate upon, as well as settle all questions involved in the suit. Further, that it will be affected by any decision from the suit herein. The plaintiff has not demonstrated what prejudice he stands to suffer if the intended interested party was joined in these proceedings.
15.It is against the foregoing that I find the Notice of Motion application dated the May 5, 2021 merited and will allow it. Costs will be in the cause.
16.I further grant the interested party leave of 21 days to file and serve its Defence after which the plaintiff including the defendant have leave of fourteen (14) days to file as well as serve their reply to defence if need be.