1.This is an appeal against a ruling of the Subordinate Court dismissing the Appellant’s application for review made under order 45 rule 1 of the Civil Procedure Rules and section 80 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya).
2.The facts upon which the application is made are fairly straight forward. By a Notice of Motion dated December 20, 2019, two interested parties; Grace Wamuyu Mathenge and Geepak Limited applied, inter alia, to be joined to the suit as interested parties and that the suit be struck out on the ground that it was res judicata. The Appellant opposed the application and by a ruling dated 29th May 2022, the trial magistrate struck out the suit on the ground that it was res judicata.
3.Being aggrieved by the order striking out the suit, the Appellant filed the notice of motion dated 19th April 2020 seeking to review the order of May 29, 2022. The Respondent and Interested Parties opposed the application. By the ruling dated 11th December 2020, the trial court dismissed the application which now gives rise to this appeal.
4.Both parties have filed extensive written submissions in support of their respective positions on the substance of the appeal. What is was not apparent to the parties nor raised by them is that the Interested Parties, who filed the initial application to strike out the suit and who opposed the application for review, are not parties to this appeal. This appeal cannot therefore be heard without affording the Interested Parties before the trial court an opportunity to be heard. This would amount to a breach of the fundamental rule of natural justice which this court cannot countenance (see Pashito Holdings and Another v Ndung’u and 2 Others KLR [E &L] 1, 295).
5.The failure to join all the parties involved in the litigation in the Subordinate Court and in particular, the Interested Parties, who ought to be Respondents in this appeal renders this appeal fatally defective.
6.The Appeal is struck out but with no order as to costs.