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Court of AppealPartially AllowedCivil Appli 141 of 2009 (UR 95/2009)· [2009] KECA 275 (KLR)

Mwaniki Wa Ndegwa v National Bank of Kenya Ltd. & 1 other

Court of Appeal of Kenya
12 June 2009
ROR.S.C. OmoloPWP.N. WakiDAD.K.S. Aganyanya
878 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that anyone directly affected by an appeal — like auction buyers — can be joined to the case and must be heard.

What this practically means

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Executive summary

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This is an interlocutory ruling of a three-judge bench of the Court of Appeal at Nairobi (Omolo, Waki and Aganyanya, JJA) on an application by Mwaniki Wa Ndegwa seeking an injunction to restrain National Bank of Kenya Ltd from advertising, realising or disposing of his property L.R. No. 3734/198, Lavington, Nairobi, and a stay of execution of the judgment and decree of the High Court (Emukule, J, dated 4th April 2008 in HCCC No. 86 of 2000) pending Civil Appeal No. 124/08. Before the application could be heard, the property was sold by public auction on 22nd May 2009 to Wamwa Trading Company Ltd, while Michael Thairu claimed to have been the highest bidder and had filed a separate High Court suit challenging the sale agreement. The applicant amended his notice of motion to join Wamwa Trading Company Ltd and Michael Thairu as 3rd and 4th respondents. The respondents objected that an amendment cannot effect joinder and that the 4th respondent's interests were protected by his own suit. The court held that, following the auction, the proposed parties had become 'persons directly affected by the appeal' within rule 76(1) of the Court of Appeal Rules, and that the 4th respondent ought to be heard before any orders were made. The court allowed the amendments, deemed the amended notice of motion properly lodged and served, allowed affidavit responses within seven days, directed that the motion be listed for hearing on a priority basis, and ordered that costs occasioned by the amendments be costs in the motion. The merits of the injunction and stay were not determined in this ruling; the decision below was not disturbed.

Key legal issues

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01

Whether a notice of motion in the Court of Appeal can be amended to join new parties who were not parties to the proceedings in the superior court

Holding

Yes. Where subsequent events (the auction sale) render third parties directly affected by the appeal, they may be joined under rule 76(1), and the joinder may be effected through amendment of the notice of motion under Rules 5(2)(b) and 42.

Reasoning

The court reasoned that although the proposed 3rd and 4th respondents could not have been parties to the High Court proceedings, the auction of 22nd May 2009 changed their position: the proposed 3rd respondent had entered a sale agreement that a restraining order would prevent completion, and the proposed 4th respondent claimed to be the highest bidder and was challenging the sale agreement. Both were therefore directly affected by any orders the court might make and ought to be heard before orders were made.

p. 2
02

Whether a party affected by proposed orders must be heard before those orders are made

Holding

Yes. A party directly affected by an order the court is asked to make ought to be heard before the order is made, which justified joining the proposed 4th respondent despite his pending separate High Court suit.

Reasoning

Counsel for the 1st respondent argued the proposed 4th respondent's interests could be protected in his separate High Court suit challenging the sale agreement, and joinder was unnecessary. The court rejected this, holding that because the 4th respondent was challenging the sale agreement between the 1st and 3rd respondents and would be affected by any restraining order, he was a party who ought to be heard before any orders were made in the motion or the appeal.

p. 2

Legal principles established

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  • Persons not parties to the superior court proceedings but who are directly affected by an appeal may be joined as parties to an interlocutory application in the Court of Appeal under rule 76(1) of the Court of Appeal Rules, and such joinder may be effected by amendment of the notice of motion.

Court orders

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  1. 1.The proposed amendments joining the 3rd and 4th respondents are allowed
  2. 2.The document headed 'AMENDED NOTICE OF MOTION' lodged on 5th June 2009 is deemed properly lodged and served
  3. 3.Any affidavits pursuant to the amendments must be filed and served within seven days
  4. 4.The motion may be set down for hearing on a priority basis as certified urgent
  5. 5.Costs occasioned by the amendments shall be in the motion
On appeal from
High Court of Kenya at Milimani Commercial Courts
H.C.C.C. No. 86 of 2000
Jurisdiction invoked
Rules 5(2)(b) and 42, Court of Appeal Rules; rule 76(1) Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwaniki Wa Ndegwa v National Bank of Kenya Ltd. & 1 other", Case Analysis (2009). Civil Appli 141 of 2009 (UR 95/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/275/eng@2009-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.