Ethics and Anti-Corruption Commission v Waititu & 4 others; Maisiwa and Spare Parts & 3 others (Interested Parties); Gikonyo & another (Intended Interested Party) (Anti-Corruption and Economic Crimes Civil Suit E020 of 2022)  KEHC 1259 (KLR) (Anti-Corruption and Economic Crimes) (23 February 2023) (Ruling)
Neutral citation:  KEHC 1259 (KLR)
Republic of Kenya
Anti-Corruption and Economic Crimes Civil Suit E020 of 2022
EN Maina, J
February 23, 2023
Ethics and Anti-Corruption Commission
Ferdinand Ndungu Waititu
Susan Wangari Ndung’u
Saika Two Estate Developers Limited
Bienvenue Delta Hotel
Bins Management Services Limited
Maisiwa and Spare Parts
Lexis International Limited
Eileen Wanjiku Mbugua
Equity Bank (Kenya) Limited
Nancy Eliza Muthoni Gikonyo
Intended Interested Party
Piedmont Investments Limited
Intended Interested Party
1.The 1st and 2nd intended interested parties filed two applications dated September 29, 2022 and October 5, 2022 respectively, seeking to be enjoined to this suit as interested parties. The applications are supported by the affidavits of Nancy Eliza Muthoni Gikonyo sworn on September 29, 2022 and November 9, 2022 and that of Maxwell Otieno Odongo sworn on October 5, 2022 respectively.
2.The applications are brought under sections 1A, 1B and 3A of the Civil Procedure Act and for the 1st intended interested party it is sought that:-
3.The gravamen of the 1st intended interested party’s application is that she is the owner of property LR No 7785/311 situated in Runda and that she is in pursuit of that interest in HCCC No 672 of 2006 Nancy Eliza Muthoni Gikonyo v Housing Finance Company Kenya and 2 others.
4.The 2nd intended interested party’s contention is that it is the true owner of LR No 209/2582 which was fraudulently sold and transferred to the 1st defendant’s company, Bienvenue Delta Hotel, at a time when there was in force a court order in HCCC No 806 of 2003 Piedmont Investments Limited v Standard Assurance Kenya Limited, Ufanisi Capital and Credit Limited and Superiorfones Communications Ltd restraining any such transfer or alienation. The application of the 2nd intended interested party seeks orders:-
5.The plaintiff opposed to the applications vide affidavits sworn by Paul Macharia on October 28, 2022 and October 7, 2022. The 2nd intended interested party’s application was also opposed by the 4th interested party by way of a replying affidavit sworn by Kariuki Kingo’ri on October 31, 2022.
Submissions By The Parties
6.The 1st intended interested party submitted that she is a necessary party to these proceedings. That her proprietary interest in the property LR 7785/311 Runda Grove is still alive, contrary to the averments of the plaintiff; that the court Nairobi HCCC No 672 of 2006 Nancy Eliza Muthoni Gikonyo v Housing Finance Company of Kenya & 2 others has not pronounced itself otherwise and it would be prejudicial if this court declines to grant the prayers sought and grant her audience to present her case before this court makes a determination on the forfeiture application. She urged this court to find that the applicant has proprietary interests in the subject property and should be joined to the proceedings. Reliance was placed on the doctrine of lis pendens as defined by the Black's Law Dictionary, 9th Edition, that any interests acquired during the pendency of the suit are subject to its outcome. Also cited is the case of Ali Sheikh Omar v Nahye Said Guhum & 3 others  eKLR, where the court stated:-
7.The 2nd intended interested party did not file submissions to the application.
8.The plaintiff submitted that both applicants are not necessary parties to these proceedings whose intent is to determine whether the impugned assets are proceeds of corruption and consequently whether an order for forfeiture ought to issue.
9.For the 1st interested party it was argued that she has no legal or equitable right over LR No 7785/311 Runda as her equity of redemption was extinguished with the statutory sale and the excess amounts paid to her husband.
10.With respect to Piedmont Investment limited, the plaintiff acknowledged that the said entity may have an interest on LR No 209/2582 pursuant to the pendency of HCCC No 806 of 2003 Piedmont Investment Limited v Standard Assurance Kenya Limited; Ufanisi Capital and Credit Limited; and Superiorfone Communications limited but submitted that these proceedings are not the proper forum to adjudicate the issues raised by the said intended interested party as it will unnecessarily convolute the proceedings.
11.On its part, the 4th interested party opposed the 2nd intended interested party’s application on grounds that:-
12.It is the 4th interested party’s contention therefore that in light of the above, the 2nd intended interested party has not sufficiently demonstrated reason to be enjoined to the present proceedings as:-
Analysis And Determination
13.The law on joinder of interested parties was stated by the Supreme Court in Communications Commission of Kenya (CCK) & 3 others v Royal Media Services Limited & 7 others  eKLR to be as follows: -
14.Further, in the case of Skov Estate Limited & 5 others v Agricultural Development Corporation & another ELC No 251 of 2012  eKLR the court stated:-
15.From the above decisions, it is clear that for a party to be joined in a suit as an interested party, they must satisfy the court that the joinder will aid in the final settlement of the matter so as to avoid a multiplicity of cases and that their joinder will provide protection for the legal and identifiable rights of the party who will be adversely affected by the decision of the court in their absence.
16.I have carefully considered the issues raised by the intended interested parties. In regard to the 1st intended interested party the issue she has raised which is whether or not the sale of her property was lawful is not one for this court to determine. That is an issue which she ought to have raised in the case where the sale was ordered. As for the 2nd intended interested party the case regarding its assets is a live issue before a court of concurrent jurisdiction and it is only if those proceedings are determined in its favour that it would have an identifiable stake in the property in question and hence become a necessary party to these proceedings which are intended to determine whether the properties were acquired by the 1st defendant through proceeds of corruption.
17.Accordingly, I find the applications dated September 29, 2022 and October 5, 2022 unmerited and hereby dismiss them with costs to the plaintiff/respondent.
SIGNED, DATED AND DELIVERED VIRTUALLY THIS 23RD DAY OF FEBRUARY 2023.E N MAINAJUDGEIn the presence of:-Mr. Mbaji for 4th Interested partyMs Rotich for Kibet for 4th and 5th DefendantsMs Kojenda for Swaka for 1st DefendantMr. Amuga for Intended Interested Party (Piedmont Investment Ltd)Mr. Makhanu for intended 5th Interested Party