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Dakane v Buscar East Africa Limited & another (Civil Appeal E054 of 2022) [2023] KEHC 20640 (KLR) (13 July 2023) (Judgment)
Neutral citation:
[2023] KEHC 20640 (KLR)
Republic of Kenya
Civil Appeal E054 of 2022
SM Githinji, J
July 13, 2023
Between
Amina Rashid Dakane
Appellant
and
Buscar East Africa Limited
1st Respondent
Stanbic Bank Kenya Limited
2nd Respondent
Judgment
CORAM: Hon. Justice S. M. GithinjiMr Kilonzo Wambua for the AppellantM/S Busaidy Mwaura is for the Respondent
1.This appeal arises from the ruling of Hon. Dr. Julie Oseko in CMCC No. E09 of 2021 wherein she allowed the Notice of Motion dated November 22, 2021in the following terms;
2.Aggrieved by the ruling, the appellant lodged the instant appeal on the following grounds;1.The learned trial magistrate erred in law and in fact in finding that the interested party is a necessary party to this suit and thus enjoining it when judgment had already been entered and the matter concluded.2.The learned trial magistrate erred in law and in fact in finding that the interested party has a stake in this matter and yet refused to appear at the earliest opportunity possible.3.The learned trial magistrate erred in law and in fact in finding that the attachment and sale was irregular when the same was done in accordance with the auctioneer’s rules.4.The learned trial magistrate erred in law and in fact in finding that the sale of the motor vehicle registration number KWC 002V is invalid and void when the sale had been conducted in accordance with the auctioneer rules.5.The learned trial magistrate erred in law and in fact in ordering that motor vehicle registration No. KWC 002V be released to the respondent when the sale was absolute and ownership vested upon a 3rd party and such it presented a miscarriage of justice.6.The learned trial magistrate erred in law and in fact in finding that the interested party had any legal or equitable claim over the attached property despite the fact that the interested party had not filed objector proceedings.7.The learned trial magistrate erred in law and in fact when he condemned the auction purchaser without being heard against the principles of natural justice.8.The learned magistrate erred in law and in fact in failing to considersection 44 of the Civil Procedure Act that whether the property is held in his name or in the name of another but on behalf, shall be liable to attachment and sale of a decree.9.The learned trial magistrate erred in law and in fact when she converted an application to enjoin an interested party to objection proceedings without following the laid down procedure.10.The learned magistrate erred in law and in fact by failing to consider the appellant’s submissions and judicial authorities on joinder of parties, objector proceedings and sale by public auction.
Analysis and Determination
JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 13TH DAY OF JULY, 2023....................................S.M. GITHINJIJUDGEIn the Presence of; -
3.I have considered the grounds of appeal and submissions by the parties and the issue for determination is whether the interested was properly joined to the suit.
4.Who is an interested party and at what stage can joinder of an interested party be entertained? According to the Black’s Law Dictionary, 9th Edition a “Necessary Party” is defined as;
5.The Black Law Dictionary, 9th Edition at page 1232 further defines an interested party as;Whereas the Civil Procedure Act, cap 21 is silent on the subject as to who is an “interested party", order 41 rule 5 of the Civil Procedure Rules 2010, does make a reference to the term “interested party” and states as follows;Besides, reference to the word “interested party” can also be traced to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, Legal Notice No. 117 of 2013, which defines an interested party as;
6.In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR, Mativo. J. explained circumstances when an interested party ought to be enjoined in a proceeding. He stated thus;
7.In the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR the Supreme Court of Kenya held that;(22)In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:
8.Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:(i)Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;(ii)joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;(iii)joinder to prevent a likely course of proliferated litigation.”
9.Further in Elton Homes vs Davis & others (2019) e KLR, the court allowed joinder of an interested party after judgment had been entered between two principals without involving him yet he was in occupation of the property from which he was being evicted. The court recognized that the intended interested party had a constitutional right to be heard; The court observed that;
10.It is trite that joinder of an interested party is meant to safeguard parties who may otherwise be ignored or side lined by a malicious party/s with the sole purpose of disenfranchising a party’s inalienable right of being heard before being condemned. I have reviewed the record of the trial court. From the Motor Vehicle Copy of Records filed in the plaintiff’s list of documents as at September 24, 2020, the vehicle was jointly registered between the 1st respondent and Equity Bank (Kenya) Limited. The Interested party who is the 2nd respondent herein, in its application dated December 7, 2021 declared its interest in the subject motor vehicle on account of an outstanding loan owed by the 1st respondent. There was no supporting evidence to back up their claims in the application regarding their interest in the motor vehicle. As such, I am of the view that they lacked locus standi to join the suit as an interested party as they had no rights that were being infringed.
11.Therefore, in the circumstances, I am of the view that the trial court misdirected itself by reversing the sale of the said motor vehicle. In any case, had the interested party had a stake in the motor vehicle and attachment had been effected, the proper procedure to follow is well laid under order 22 rule 51 (1) of the Civil Procedure Rules of which procedure was not followed. That said, I find that the appeal succeeds in its entirety and the same is hereby allowed with no orders as to costs.
1.Mr Kilonzo for the Appellant
2.Mr Wafula for the 2nd Respondent
3.Mr Kavasa for 1st Respondent
