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Court of AppealDismissedCourt of Appeal motion dated January 2, 2023 (arising from intended appeal against judgment in Eldoret ELC No. 71 of 2017)

Lalji & 3 others v Simba Hills Farm Limited & 7 others; Chelugui & 5 others (Applicant) (Civil Appeal (Application) 70 of 2020) [2023] KECA 1480 (KLR)

Court of Appeal of Kenya
8 December 2023
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to add six applicants as interested parties in a land appeal, confirming joinder is discretionary, not automatic.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Eldoret (Sichale, Ochieng and Achode, JJ.A) delivered on December 8, 2023, on a motion dated January 2, 2023 by six applicants seeking to be enjoined as interested parties in a pending appeal, together with leave to file pleadings and evidence. The appeal arises from a suit filed in the Environment and Land Court at Eldoret, ELC No. 71 of 2017, by Kipkering Arap Sitienei and Kipsondin Arap Kuto against the appellant. The applicants, who claimed to be duly elected directors and shareholders of the 1st respondent company representing over 246 persons occupying portions of the suit property, contended that the suit had been filed by persons who were neither directors nor shareholders of the company. The court applied the Supreme Court's joinder principles articulated in Attorney General v David Ndii (drawing on Trusted Society of Human Rights Alliance v Mumo Matemu and Muruatetu) and its own criteria in Hamisi Yawa v Tsangwa Ngala Chome. It held that the applicants were not parties before the High Court, that a Registrar of Companies SH-4 document annexed to their own motion showed the two plaintiffs were shareholders of the 1st respondent, and that their elevation from shareholders to directors was immaterial. The court also reasoned that if the suit truly lacked locus, the appeal would itself collapse, leaving nothing to join. The Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, declining enjoinment of a party absent from both superior courts, was followed. The motion was dismissed in its entirety with 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 applicants should be enjoined in the pending appeal as interested parties
  2. 2.Whether the applicants should be granted leave to file any necessary pleadings and evidence in the appeal

Key legal issues

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01

Whether the applicants met the criteria for joinder as interested parties in the pending appeal

Holding

The application was dismissed: the applicants were not parties before the High Court, their claim of lack of locus of the originating plaintiffs was contradicted by the SH-4 Registrar of Companies document, and their change of status from shareholders to directors was immaterial to the appeal

Reasoning

The court applied the Supreme Court's principles in Attorney General v David Ndii (adopting Trusted Society of Human Rights Alliance v Mumo Matemu and Muruatetu) and its own principles in Hamisi Yawa. It found the applicants' personal interest not established on the facts: they admitted not being parties below, and the documentary evidence contradicted their assertion that the plaintiffs lacked standing to file the suit. If the suit were indeed a non-starter, the appeal would itself fall away and there would be no appeal to join.

p. 4
02

Whether the applicants' status as newly elected directors of the 1st respondent entitled them to be heard in the appeal

Holding

The mere fact that the applicants were shareholders when the suit was filed and had since become directors was 'neither here nor there' and did not warrant joinder

Reasoning

The court held that the applicants' change of status did not create a proximate interest in the appeal. A Registrar of Companies SH-4 document annexed to their own motion showed that Kipkering Arap Sitienei and Kipsondin Arap Kuto were shareholders of the 1st respondent, undermining the applicants' central premise. Further, the appellant argued that if locus was lacking, the suit and the appeal would both collapse, leaving no proceedings in which to be joined.

p. 4

Legal principles established

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  • Enjoinment as an interested party is not as of right but at the discretion of the court, requiring sufficient grounds including a clearly identifiable personal interest or stake, demonstrated prejudice from non-joinder, and a case or submissions not merely replicative of other parties' submissions
  • A party who was neither a party before the superior courts must demonstrate how the ends of justice would be better served by being enjoined in the appeal, failing which joinder will be refused

Court orders

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  1. 1.The applicants' motion dated January 2, 2023 is dismissed in its entirety
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Eldoret (Environment and Land Court)
ELC No. 71 of 2017
Jurisdiction invoked
Rule 77(1) of the Court of Appeal Rules and Article 159(1)(d) of the Constitution of Kenya

Relief refused

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Joinder of the six applicants as interested parties in the pending appeal

Applicants were not parties before the High Court, and their contention that the originating plaintiffs were neither directors nor shareholders was contradicted by the Registrar of Companies document annexed to their own motion; the ends of justice would not be served by their enjoinment

p. 4

Leave to file any necessary pleadings and evidence in the appeal

It fell with the dismissal of the motion in its entirety

p. 4

Costs

No order as to costs - the motion was dismissed "with 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.

It is in view of the above that we hold and find the applicants motion dated January 2, 2023, to be devoid of merit and accordingly dismiss the same in its entirety with no order as to costs.
p. 4Final orders - dismissal of the joinder motion
Ultimately therefore and from the circumstances of this case we are unable to see how the ends of justice will be served by enjoining the applicants as interested parties in these proceedings at this stage.
p. 4Ends of justice test for enjoinment
Enjoinment is not as of right, but is at the discretion of the court; hence, suficient grounds must be laid before the court
p. 3Interested-party joinder principles from the Supreme Court
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. 4Joinder criteria from Hamisi Yawa
If the suit was a non-starter, then the appeal itself must fall by the wayside. If this is the case, there would be no appeal to be enjoined in.
p. 4Locus of originating plaintiffs and its consequences for the appeal

Issues in the judgment

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minor

The affidavit in support of the motion is described as 'dated February 2, 2013' although the motion itself is dated January 2, 2023 - likely a typographical error for 2023 in the judgment

minor

The judgment inconsistently spells the names of the originating plaintiffs, e.g. 'Kipsondin Arap Kuto' versus 'Kisondin Arap Kuto', and 'Sitienei' versus 'Siteinei'

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, "Lalji & 3 others v Simba Hills Farm Limited & 7 others; Chelugui & 5 others (Applicant) (Civil Appeal (Application) 70 of 2020) [2023] KECA 1480 (KLR)", Case Analysis (2023). Court of Appeal motion dated January 2, 2023 (arising from intended appeal against judgment in Eldoret ELC No. 71 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1480/eng@2023-12-08

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