Court allows founding treasurer to join Nakuru children's home leadership dispute

The battle over the management of a children’s home in Nakuru is set to intensify after the High Court allowed a man claiming to be a founding member and registered treasurer to join a case challenging the institution’s leadership and control of its assets.

Justice Joseph Sergon ruled that Joseph Mwaura Nga’ng’a had demonstrated a direct interest in the dispute involving Mission in Action Nakuru Baby Orphanage, which arose following the death of its founding chairperson, Ivan Budulica.

 The case pits the Registered Trustees of Mission in Action Nakuru Baby Orphanage against Damaris Rigiri Budulica and Cyrus Kivuti, who maintain that they have faithfully managed the institution since the founder’s death.

 Nga’ng’a sought to be enjoined as an interested party, saying he was a founding member and registered treasurer of the society, a position he claimed to have held since 2005.

He told the court that the society’s constitution assigned the treasurer responsibility for managing its finances and that the two defendants did not appear in the records held by the Registrar of Societies.

He further claimed that he had been locked out of the institution’s affairs and raised concerns that its assets, some registered in the late founder’s name, could be at risk.

 The registered trustees did not oppose his application, but Budulica and Kivuti challenged his bid to join the proceedings.

The two argued that Nga’ng’a had previously supported their position before changing sides, questioning his credibility and alleging bias. They also claimed that he had ceased to be a member of the society after failing to pay subscriptions.

They further argued that his participation was unnecessary because his case largely mirrored that of the registered trustees. They also cited a directive by the Registrar of Societies requiring the institution to hold an annual general meeting.

However, Justice Sergon rejected the argument that Nga’ng’a’s application duplicated an earlier one, finding that the document cited by the defendants sought dismissal of the suit rather than his admission as an interested party.

The judge also ruled that the applicant’s alleged change of position was not, by itself, sufficient reason to exclude him from the case, adding that his credibility could be assessed during the trial.

On his membership, the court noted that records from the Registrar of Societies identified Nga’ng’a as treasurer. The defendants had not produced subscription records, a committee resolution removing him from office or evidence showing that subscriptions had been demanded from him.

The court also noted that the parties had presented different versions of the society’s constitution and disputed documents relating to changes in its officials in 2023.

 Justice Sergon said the contested issues required determination during the trial and should not be conclusively decided at the application stage.

 “A joinder application is not a mini-trial,” the judge observed, noting that Nga’ng’a had an identifiable interest in the dispute because his status as treasurer was itself among the issues in contention.

 The judge further found that excluding him could expose him to a decision affecting his interests without giving him an opportunity to be heard. The court will determine who the lawful office bearers are and who should control the society’s assets.

 He also dismissed the argument that the Registrar’s directive to hold an annual general meeting had resolved the leadership dispute, noting that there was no evidence that the meeting had taken place.

“The Registrar’s letter of 20th September 2023 directing an annual general meeting is an administrative direction. It adjudicates nothing, and there is no evidence that any such meeting has been held in the two years since. Meanwhile this Court will decide who the lawful office bearers are and who controls the Society’s assets. Were it to do so without the Applicant, he would be affected by a decision reached in his absence, contrary to the “either way” test in Trusted Society and to the fair hearing guarantee in Article 50(1) of the Constitution. That prejudice is real and not remote,” ruled the court.

 However, the court restricted Nga’ng’a’s participation to issues already raised in the suit, including his status as an office bearer, the validity of the 2023 changes to the society’s officials, and control and ownership of its assets.

He will not be allowed to introduce a fresh cause of action, and evidence already recorded will not be reopened because of his admission to the case.

“His participation is confined to the issues already raised by the pleadings, namely his status as an office bearer, the validity of the 2023 changes of officials, and the control and ownership of the Society’s assets. He may not enlarge the suit or introduce a fresh cause of action. Evidence already recorded shall not be reopened on his account,” read the ruling.

The judge allowed Nga’ng’a’s application dated May 6, 2025, and ordered that costs be determined as part of the main suit.