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Muungano Wa Wanavijiji Akiba Mashinani Trust v Kihiu & 3 others; Waweru & 5 others (Interested Parties) (Civil Application E279 of 2022) [2023] KECA 946 (KLR) (28 July 2023) (Ruling)
Neutral citation:
[2023] KECA 946 (KLR)
Republic of Kenya
Civil Application E279 of 2022
HM Okwengu, JM Mativo & GWN Macharia, JJA
July 28, 2023
Between
Muungano Wa Wanavijiji Akiba Mashinani Trust
Applicant
and
Mary Nduta Kihiu
1st Respondent
Kathira Noor H. Bile
2nd Respondent
Joseph Mwangi
3rd Respondent
Robert Okwoyo Mironga
4th Respondent
and
John Mbatia Waweru
Interested Party
Cecilia Wanjiru Kibe
Interested Party
Jacinta Wakina Njue
Interested Party
Thomas D Githinji
Interested Party
Gula Fadhili Yusuf
Interested Party
Sisal Greenfield Housing Co-operative Society Limited
Interested Party
(Application for an order for joinder of Sisal Greenfield Housing Co-Operative Society Limited as an Interested Party to the Civil Application No. E250 of 2022 and the intended appeal against the judgment of the ELC Court at Nairobi (O.A. Angote, J.) delivered on 5th May 2022 in Environment and Land Court in ELC Number 1112 of 2013)
Ruling
1.What is before us for determination is an application dated 2nd August 2022 which was amended on the same date, brought under rules 5(2) (b), 31, 33, 43, 44, 49, and 79 of the Court of Appeal Rules, sections 3A & 3B of the Appellate Jurisdiction Act and Article 50(1) of the Constitution, seeking: that the applicant/proposed interested party, Sisal Greenfield Housing Co- Operative Society Limited, be enjoined to Civil Application No. E250 of 2022 and the intended appeal as an interested party; that an order do issue that title deeds to the Suit Properties known as L.R 7109/88, Nairobi and L.R 7109/89, Nairobi be deposited with the Registrar of this Court pending the hearing and determination of the referenced appeal; that in the alternative this Court be pleased to grant a temporary proprietary injunction restraining both the respondents and/or their assignees, lessees, agents, servants, representatives, employees or any other person from sale, transfer, gifting, any disposition or dealing with of any of the suit properties known as L.R 7109/88, Nairobi and L.R 7109/89, Nairobi in any manner whatsoever pending the hearing and determination of the referenced appeal; that this Court grants a mandatory injunction to compel the respondents/plaintiffs to deposit all income generated from all activities upon the suit property pending the hearing and determination of the referenced appeal; and that costs of this application abide the outcome of the referenced appeal.
2.The application is supported by the affidavits sworn on 2nd August 2022 by Joseph Karaja and Cecilia Wanjiru, the interim Chairman and Secretary respectively of the applicant. They contend that the suit property forms a trust property with two thousand two hundred and twenty one (2221) beneficiaries, being an implied trust between the applicant’s members and the appellant; that the applicant represents 1590 of the 2221 members and the four respondents do not represent all the beneficiaries of the trust formed between the appellant and the interested party; that in the absence of any elections within appellant for the last ten years, the four respondents represent only 33% of the equitable beneficial interest of the membership of the interested party in the suit properties.
3.According to the applicant, the respondents admitted to owing a sum of Kshs. 23,532,016.32 to the appellant. It is the case of the applicant therefore, that the intended appeal is arguable and if successful, it shall be rendered nugatory as the respondents will have appropriated the entire suit properties to potential third parties if the Court does not take into possession the title documents. The applicant will also suffer irreparable and unquantifiable harm as it stands to lose about 66% of the purchase price which it tabulates at Kshs. 72,073,963. The applicant posits that the respondents have already commenced execution proceedings against the appellant, being the transfer of the suit properties into their individual names and if the transfer is effected and the respondents dispose of the properties, they (respondents) will not be able to repay or restore the value of the suit properties as a result of which the applicant will lose the substantial sum or its members proprietary interest in the suit property. It argues that it has tried negotiating with the respondents with a view to settling the dispute out of court but the meetings always end up in violence; and that if the orders sought are not granted, the appeal will be rendered nugatory and an academic exercise.
4.The application is opposed by the 1st respondent vide a replying affidavit sworn on 16th August 2022. He terms the application an abuse of the court process in that, the applicant had previously filed a similar application dated 26th October 2020 before the Environment and Land Court (ELC) which was dismissed on 11th February 2021. The applicant never appealed the ruling dismissing the application, and as such, it is binding on it which then renders the instant application res judicata. Furthermore, in the ruling, ELC held that the application was res judicata by virtue of a similar application having been filed by the officials of the applicant which was dismissed on 14th November 2014. It is also contended that the applicant having been registered on 14th August 2019 cannot claim any lawful legitimate interest in the subject matter of the suit or appeal when in fact the suit in ELC commenced on 18th September 2013. We were urged to dismiss the application with costs.
5.The application was opposed by the 1st interested party vide a replying affidavit sworn on 19th August 2022. He deposes that he is the Chairman of the applicant, yet he was not consulted about the alleged meeting that ousted him; that consequently, the minutes of that meeting were null and void, additionally, the meeting was attended by members who were not committee members; the applicant failed to appeal the judgment from the trial court, nor the ruling dismissing its application seeking its joinder in the trial court proceedings; that it was the appellant who was advising them (interested parties) what applications to file in court, but they later realized that it used to work in cohorts with the applicant to their detriment. He also urged us to dismiss the application.
6.In a rejoinder to respondents’ replying affidavit, the applicant filed further affidavits sworn by Cecilia Wanjiru, its Treasurer, on 26th August 2022, Joseph Karanja, its interim Chairman, sworn on 23rd August 2022, Gulu Yusuf, its Secretary and the 5th interested party, sworn on 26th August 2022. The content of the respective affidavits is similar to that in the 1st interested party’s replying affidavit. They basically depose that that the respondents have lied to the court in that no meeting was called to discuss either the judgement or rulings of the ELC, more specifically, whether the decisions were to be challenged.
7.When the matter came up before us for hearing on 13th February 2023, learned counsel, Mr. Ong’amo holding brief for Mr. Bryant appeared for the applicant, learned counsel, Mr. Magee appeared for the respondent and Mr. John Mbatia appeared in person on behalf of the interested parties. Parties relied on written submissions.
8.Mr. Ong’amo argued that Section 7 of the Civil Procedure Act provides that for a matter to be res judicata, it must be between the same parties and deal with similar issues that are already litigated. He distinguished the instant application with the application in the trial court, submitting that in the latter, the applicant sought to be enjoined as a defendant and not as an interested party. While emphasizing that the application is merited, counsel argued that the applicant represents more than 60% of the rightful owners to the suit properties, and any order which the Court would issue would directly affect them. Furthermore, the respondents have not demonstrated what prejudice they would suffer if the application was allowed. To the contrary, the applicant would be a necessary party to the proceedings as, through its members, it will provide crucial information which will be in the interest of justice.
9.Mr. Magee argued that the application was res judicata and the appellant has yet to file a substantive appeal a year after judgment, that under Rule 83 of the Court of Appeal Rules, the application has no legs to stand on and should be dismissed with costs.
10.On his part, Mr. Mbatia submitted that he was satisfied with the trial court’s ruling on the application dated 26th October 2020.
11.In a quick rebuttal, Mr. Ong’amo stated that the delay in filing the appeal was due to the inability to get certified copies of the proceedings. Again, as at the time the trial court’s ruling of 14th November 2014 was delivered, it (applicant) was yet to come into being as it was incorporated in 2019; and, in the application giving rise to the ruling dated 11th February 2021, it sought to be enjoined as a defendant and not as an interested party, thus, the application was not res judicata.
12.We have considered the application, the responses, the respective submissions and the law. The issues that crystalize for determination are threefold. The first is whether the interested party should be enjoined to these proceedings; the second is whether an injunction should be issued against the respondents; and the third is whether an order should issue for deposit of the title documents of the suit property with the Court.
13.On the first issue, the applicant contended that Rule 79 of the Court of Appeal Rules, under which this application is brought, does not define the word ‘affected’ so as to bring it into conformity with who an affected party to an appeal is. The argument was fronted based on the premise that it seeks joinder as an interested party by virtue that it would be affected by any orders that the Court would issue. The relevant part of the Rule 79 is sub-rule (1) which states that:
14.We agree that Rule 79(1) does not define the word “affected.” However, this Court defined the word in the case of Centre for Rights Education and Awareness & Another v. John Harun Mwau & 5 Others, CA No. 74 of 2014 (CA). Referring to the cases of Kamlesh Pattni Vs StarwoodHotels and Resorts World Wide Inc. & 7 Others Civil Application No. NAI 330 of 2001 (UR 176/2001) and Commercial Bank of Africa Limited Vs. Isaac Kamau Ndirangu, Civil Appeal No. 157 of 1991, (CA); [1992] eKLR, the Court held that:
15.The Supreme Court in Trusted Society of Human Rights Alliance Vs. Mumo Matemo & 5 others [2014] eKLR at paragraphs 18 of the ruling did define an interested party as follows: -
16.Of note is that the Court of Appeal Rules provides for joinder of persons affected by the appeal and does not have any provision for joinder of interested party, but given the Supreme Court definition in the afore cited case, such a person would be covered by Rule 79 as an affected person. Joinder of a party is not an automatic right, but one which is granted upon exercise of the discretion of the court concerned. The court should however exercise such discretion under defined parameters, being that it must be satisfied that: -a.The intended party has a personal interest or stake in the matter in question; and that interest is clearly identifiable and proximate enough and not merely peripheral.b.The intended party’s presence would enable court to resolve all the matters in the dispute.c.The intended party would suffer prejudice in case of non-joinder.d.The joinder of the intended party will not vex the parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.
17.While the applicant may be said to have a personal interest in the matter, we are of the view that the interest it has is not clearly identifiable and its presence in the proceedings would, instead, only convolute the intended appeal with unnecessary matters that are peripheral to the issues requiring determination. This we gleaned from the pleadings filed by the parties. They show that the interested parties are parties in the suit in their capacity as leaders of the applicant. Allowing the applicant to join the appeal would infer that the applicant will be represented by two different factions who are on different sides. What this again means is that, the applicant cannot introduce its own issues into the proceedings of the principal parties. This principle was stated by the Supreme Court in Francis Karioko Muruatetu & another Vs. Republic & 5 others [2016] eKLR as follows:
18.We are also of the view that the applicant’s interest will be well articulated and represented by the appellant, being that the applicant is in support of the appellant’s position, with a further similarity that they share the same advocate, learned counsel, Mr. Bryant. We are persuaded that the only benefactor from the inclusion of the applicant to the intended appeal would be the appellant whose sole reason for seeking the enjoinment is to get an order of injunction against the respondents and an order for deposit of the title documents to the suit property with the Court. We cannot help but note that these are the same prayers in the appellant’s application in Civil Application No. E250 of 2022. In our view, this application is merely an ingenious approach by the appellant to delay execution of the ELC’s Judgment.
19.That aside, the respondents opposed the application on account that the same was res judicata, contending that the applicant had filed two similar applications in the ELC which were dismissed. The applicant did not bring this assertion to the Court’s attention, nor did it challenge the respondents’ claim. Instead, it merely contended that the ELC’s ruling dated 14th November 2014 was as a result of an application filed by the applicant’s leaders in their personal capacity while the ruling dated 11th February 2021 was initiated by the applicant who sought joinder as a defendant and not as an interested party; and that the two applications were different and distinct from the instant application.
20.The respondent in the replying affidavit annexed the ruling dated 11th February 2021, and none of the parties provided us with the ruling dated 14th November 2014. The only reference to it we could find was that it was mentioned in passing in the former ruling.
21.What constitutes res judicata is well defined by section 7 of the Civil Procedure as follows:
22.This Court in the case of William Koross Vs. Hezekiah Kiptoo Komen & 4 Others [2015] eKLR, espoused the principles of the doctrine of res judicata as follows:
23.In reference to the application by the applicant dated 26th October 2020 which was dismissed by the ruling dated 11th February 2021, the contention that the application as filed was not similar to the instant application on account that the applicant sought to be enjoined as a defendant and not as an interested party, is nothing more than its counsel splitting hair. We say so because, the issues raised by the parties therein remain the same. The fact that at one point the applicant sought joinder as an interested party and at another as a defendant, does not negate the fact that a court of competent jurisdiction dismissed these applications and no appeal was preferred against those decisions. There can be no other finding other than that the application herein is res judicata.
24.In conclusion, we find and hold that the applicant has manifested its partisan support for the appellant, and it would be improper for it to be enjoined as an interested party. For this reason, we find the application is not only res judicata, but also an abuse of the court process.
25.In regards to the other prayers, having held that the applicant has not met the threshold for joinder as an affected party, it then lacks the locus to seek any of the other prayers.
26.In the upshot, we find that the applicant’s application dated 2nd August 2022 lacks merit and the same is hereby dismissed with costs.
DATED AND DELIVERED AT NAIROBI THIS 28TH DAY OF JULY, 2023.HANNAH OKWENGU..................................JUDGE OF APPEALJ.M. MATIVO..................................JUDGE OF APPEALG.W. NGENYE-MACHARIA..................................JUDGE OF APPEAL
