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    Nairobi Civil Appeal (Application) No. E301 of 2023

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    Nairobi Civil Appeal (Application) No. E301 of 2023

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    Nairobi Civil Appeal (Application) No. E301 of 2023

    Uploaded by

    abuyaowen420

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 6

    IN THE COURT OF APPEAL

    AT NAIROBI

    (CORAM: GATEMBU, LESIIT & NGENYE, JJ.A)

    CIVIL APPEAL (APPLICATION) NO. E301 OF 2023

    BETWEEN

    KENYA UNITED SPORTS LIMITED………………………...APPELLANT

    AND

    AURIEL MARIE JOY KIMEMIAH………………..…1ST RESPONDENT


    JACOB JUMA……………………………………..…….2ND RESPONDENT
    MARY WANJIRU CHEGE……………………..……..3RD RESPONDENT
    CHIEF LAND REGISTRAR…………………..………4TH RESPONDENT
    WILLIAM TUMATE SIALLA SANO………..……….5TH RESPONDENT
    SUANKEI OLE PARKIRE……………………..….....6TH RESPONDENT
    LATOO ENE PRIAKANGA NCHEPAI……..…….…7TH RESPONDENT

    AND

    1. HOTEL DESTINATION LIMITED


    2. BATULA HASSAN ABDI
    3. MAGIC INDUSTRIES LIMITED………APPLICANTS/INTENDED
    INTERESTED PARTIES

    (Being Applications for the applicants herein to be joined in


    the appeal against the judgment/decree of the Environment
    and Land Court at Nairobi (Okong’o, J.) delivered on 4th
    August 2022 in ELC Suit No. 351 of 2008 as intended
    interested parties)
    *************************************

    RULING OF THE COURT

    1. In a judgment, the subject of this appeal, delivered on 4th


    August 2022, the Environment and Land Court (ELC) (S.
    Okong’o, J.) decreed, among other things, that the property
    known as L. R. No. 13873 situated at Karen Plains, Nairobi is
    wholly owned by the 1st respondent who holds the genuine

    Page 1 of 6
    title in respect thereof; that the titles in respect of the said
    property held by the 2nd respondent (Miriam Wairimu
    Wambugu (as representative of the estate of Jacob Juma,
    deceased), 3rd respondent Mary Wanjiru Chege, 5th
    respondent William Tumate Sialala Sano, 6th respondent,
    Suakei Ole Parkire) and 7th respondent (Latoo Ene Priakanga
    Nchepai ) and the appellant Kenya United Sports Limited are
    fraudulent, null and void and the same are cancelled; that
    the purported subdivision of the property by the appellant is
    null and void. Aggrieved, the appellant, Kenya United Sports
    Limited, filed this appeal.

    2. In its application before us dated 2nd October 2023, the


    applicant, Hotel Destination Limited, seeks orders that it be
    joined as an interested party in the appeal; that it be allowed
    to file an affidavit or other evidence in the appeal and that
    the matter be remitted back to the ELC for retrial. It is urged
    in the affidavit in support and in the submissions by learned
    counsel Mr. Arusei that the applicant is directly affected by
    the appeal being a purchaser from the appellant of L.R. No.
    13873/2, a sub-division of the suit property; that the
    applicant did not have notice of the proceedings before the
    ELC that culminated in the impugned judgment that has
    adversely affected it.

    3. Also before us is an application dated 2nd November 2023 by


    Batula Hassan Abdi who also seeks to be joined in the
    appeal. His case, as set out in his supporting affidavit and as
    urged in submissions by learned counsel Mr. Mohamed is

    Page 2 of 6
    that he bought L.R. No. 13873/7, a subdivision of the suit
    property from the appellant and charged it to Gulf African
    Bank to secure bank facilities and only learnt of the
    proceedings before the ELC after the impugned judgment was
    delivered. He also seeks an order of injunction “halting all the
    parties from making and/or effecting any changes to LR No.
    13873/7”.

    4. There is a third application dated 26th January 2014 by


    Magic Industries Limited which was urged before us by
    learned counsel Mr. Lakicha. It asserts that it entered into
    purchase agreements and paid Kshs. 44,000,000.00 for LR
    No. 13873/4 and LR No. 13873/5 having undertaken due
    diligence and is therefore directly affected by the decision of
    ELC. In addition to its prayer to be joined in the appeal as an
    interested party, it seeks an order of injunction to restrain
    the 1st respondent from interfering or dealing with LR No.
    13873/4 and LR No. 13873/5 as well as an order of stay of
    execution of the judgment of the ELC.

    5. We were informed that an earlier application dated 10th July


    2023 for joinder of Bamoja Construction Co. Ltd in the
    appeal through the firm of Theuri Wesonga & Company
    Advocates, had been withdrawn.

    6. We heard the three applications together on 31st January


    2024 when counsel submitted that the three mentioned
    applicants are directly affected by the appeal and should
    therefore be joined as interested parties; and that the
    applicants were unaware of the proceedings before the ELC
    Page 3 of 6
    otherwise they would have applied to participate there.
    Among the decisions cited in support is the case of Francis
    Kariuki Muruatetu [2016] eKLR for definition of “interested
    party”. In relation to the prayers for injunction, it was
    submitted that the appeal is arguable and that the same will
    be rendered nugatory if the orders sought are not granted.

    7. Learned counsel Ms. Wangui Shaw, referring to the replying


    affidavits and submissions in opposition to the applications
    strenuously opposed the same. Counsel submitted that
    during the pendency of the appeal before the ELC, the
    appellant herein purported to transfer the property to Bamoja
    Construction Co. Ltd from which Batula Hassan purportedly
    purchased and there is therefore no privity of contract with
    the 1st respondent and no purpose will be served by joinder;
    and that the proceedings before the ELC were not done in
    secret and the claims that the applicants were unaware is
    far-fetched.

    8. Miss. Shaw urged that in 2017, the ELC ordered the arrest of
    any person on the property and no one was therefore allowed
    on the property thereafter, yet the proposed interested parties
    did nothing since that time; that the remedy for the
    applicants lies in pursuing those who purported to sell to
    them; that to allow the applications will unduly confound
    and muddle issues in the appeal; and that an applicant who
    seeks to be joined in proceedings ought not to be joined if the
    cause of action is separate and distinct. Reference was made
    to the Supreme Court decision in Communications

    Page 4 of 6
    Commission of Kenya & others vs. Royal Media Limited
    & others, SC Petition No. 15 of 2014 and Trusted
    Society of Human Rights vs. Mumo Matemo & others
    [2014] eKLR.

    9. In relation to the prayers for injunction or stay of execution of


    the judgment of the ELC, Ms. Shaw submitted that the
    applicants have no appeal at all leave alone an arguable
    appeal; that the issues by the applicants are completely
    different; and neither have the applicants demonstrated that
    the appeal will be rendered nugatory if the orders sought are
    declined.

    10. Although, as learned counsel Ms. Shaw correctly submitted,


    there is no demonstration of privity of contract between the
    applicants and the 1st respondent, there is, it would appear,
    privity of estate to the extent that the subdivisions the
    applicants claim are off shoots of the suit property. To that
    extent, we take the view that the impugned judgment of the
    ELC the subject of the appeal affects them. In Commercial
    Bank of Africa Limited vs. Isaac Kamau Ndirangu, Civil
    Appeal No. 157 of 1991, [1992] eKLR, this Court
    proceeded on the basis that a person whose property rights
    are affected by a judgment is ‘a person affected by the appeal’
    within rule 79 of the Court of Appeal Rules.

    11. We are satisfied that the applicants have demonstrated an


    interest in the subject matter of the appeal and are entitled to
    be heard during the appeal. They will be entitled to file
    submissions and to be heard in the appeal. As this Court will
    Page 5 of 6
    not be conducting a trial, there is no basis for granting the
    orders for filing of affidavits or other evidence.

    12. In the result, the applications dated 2nd October 2023, 2nd
    November 2023 and 26th January 2024 succeed to the extent
    only that Hotel Destination Limited; Batula Hassan Abdi and
    Magic Industries Limited are joined in this appeal as
    interested parties and will be at liberty to address the Court
    during the hearing of the appeal.

    13. The prayers for injunction or stay of execution of the


    judgment of the ELC coming so late after delivery of the
    impugned judgment are devoid of merit and are declined.

    14. Costs of the applications shall be in the appeal.

    Dated and delivered at Nairobi this 12th day of April 2024.

    S. GATEMBU KAIRU, FCIArb

    .................................
    JUDGE OF APPEAL

    J. LESIIT

    .................................
    JUDGE OF APPEAL

    G.W. NGENYE-MACHARIA

    ……………………..…
    JUDGE OF APPEAL

    I certify that this is a


    true copy of the original.
    Signed
    DEPUTY REGISTRAR

    Page 6 of 6

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