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Court of AppealPartially AllowedMotion dated June 17, 2022 (Civil Application)

Thiga v Ngenda Investment Rural Sacco Ltd; Parmar & another (Respondent); Cheruiyot (Intended Interested Party) (Civil Application 78 of 2021) [2023] KECA 509 (KLR)

Court of Appeal of Kenya
12 May 2023
FSF. SichaleFOF. OchiengLAL. Achode
1,102 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a Sacco member to join an appeal as an interested party, confirming members can protect their interests when officials act without proper authority.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru on a motion dated June 17, 2022 by Raymond Cheruiyot, a member of the respondent Sacco, seeking to be enjoined as an interested party in an appeal. The motion was brought under Order 1 rule 10(1)(2) of the Civil Procedure Rules 2010 and sections 3A, 1A and 1B of the Civil Procedure Act. The applicant deponed that the chairman and secretary of the Sacco had given notice to act in person in place of the previous advocates without following laid-down procedure, without a general meeting of over 2,000 members and without minutes, and that the officials were implicated in illegal transactions concerning the Sacco's assets pending ODPP advice. The application was opposed by Paul Ndegwa Thiga, who argued that the applicant had no personal interest and would suffer no prejudice, while the Sacco did not oppose the motion. The court applied its own earlier decision in Hamisi Yawa and set out the criteria for joinder: desirability of the applicant's presence to resolve all matters, absence of prejudice, and absence of unnecessary new matters. Finding that the applicant, as a Sacco member, had a legitimate concern to protect his interests and that no prejudice would be occasioned, the court allowed the motion and enjoined him as an interested party. Given that all disputants were members of a common Sacco, the court made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant, a member of the respondent Sacco, should be enjoined as an interested party in the proceedings
  2. 2.Whether the joinder would occasion prejudice to the other parties

Key legal issues

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Criteria for joinder of a party as an interested party

Holding

The applicant, a member of the respondent Sacco, sufficiently made out a case for joinder as an interested party and no prejudice would be occasioned to the other parties.

Reasoning

The court adopted the criteria set out in Hamisi Yawa & 36,000 others v Tsangwa Ngala Chome & 19 others: the applicant must show it is desirable for him to be added so his presence enables the court to resolve all matters in dispute, the joinder must not prejudice other parties, and it must not convolute the proceedings with unnecessary new matters. A member of a Sacco has a legitimate concern to protect his interests, especially given the internal conflict within the Sacco over termination of its advocates. The Sacco itself did not oppose the joinder.

p. 3

Legal principles established

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  • Joinder of a party, like amendment of pleadings, should be freely allowed at any stage of the proceedings provided it does not result in prejudice or injustice that cannot be compensated in costs, subject to the criteria for joinder.
  • A party seeking joinder must show that his presence would enable the court to resolve all matters in dispute, that the joinder will not prejudice the other parties, and that it will not convolute the proceedings with unnecessary new matters.

Court orders

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  1. 1.The applicant is granted leave to be enjoined as an interested party in the proceedings
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FS
majority
FO
majority
LA
majority
Jurisdiction invoked
Order 1 rule 10(1)(2) of the Civil Procedure Rules 2010 and sections 3A, 1A and 1B of the Civil Procedure Act

Relief refused

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Costs of the application

The disputants are all members of a common Sacco

p. 3

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The rationale behind the joinder of any party to proceedings is to have on board a necessary party for purposes of determining the real issues in dispute.
p. 2Purpose of joinder
The criteria which are in no way exhaustive include: 1. The applicant must demonstrate that it would be desirable for him/her to be added as a new party and that his/her presence would enable court to resolve all the matters in the dispute.
p. 3Criteria for joinder
Accordingly, we find the applicant’s motion dated June 17, 2022, to be merited and we allow the same. The applicant is hereby granted leave to be enjoined as an interested party in these proceedings.
p. 3Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Thiga v Ngenda Investment Rural Sacco Ltd; Parmar & another (Respondent); Cheruiyot (Intended Interested Party) (Civil Application 78 of 2021) [2023] KECA 509 (KLR)", Case Analysis (2023). Motion dated June 17, 2022 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/509/eng@2023-05-12

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