https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4205

Sheobo v Harshiv Autospares Hardware & Suppliers Limited & 5 others (Environment and Land Case E192 of 2022) [2026] KEELC 4205 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4205 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E192 of 2022 CA Ochieng, J July 8, 2026 Between Badi Ali Sheobo Plaintiff and Harshiv Autospares Hardware & Suppliers Limited 1st Defendant County Governmnet of Nairobi 2nd Defendant Kenya National Highways Authority 3rd Defendant and Chief Registrar Ministry Of Lands 1st Interested Party National Land Commission 2nd Interested Party Hirji Khimji Bhimji Seyani Ramesh Ravji Pindoriya Harish Govind B K Vekaria Lakhman Lalji Patel Harish Ravji Mavji Patel Gopal Lalji Vekaria Devshi Parbat Pindoria (Joined As The Registered Trustees Of Shree Kutch Satsang Swaminarayan Temple) 3rd Interested Party Ruling 1.On 18th September 2025, this Court issued orders joining the 3rd Interested party to the suit. The said orders triggered two separate applications dated 13th October 2025 and 22nd October 2025 respectively. The Court will first determine the Notice of Motion dated 22nd October 2025 which seeks to set aside the orders of 18th September 2025. Notice of Motion dated 22nd October 2025 2.It is filed by the Plaintiff who seeks the following orders;a.Spent.b.Spent.c.That the order issued on 18th September 2025 joining the registered trustees of Shree Kutch Satsang Swaminarayan Temple as an Interested Party in the matter be vacated and /or set aside.d.The Honourable Court be pleased to grant any further orders as may be just in the circumstances.e.Costs of this application be awarded to the Plaintiff/Applicant. 3.The application is premised on grounds on its face and on the Plaintiff’s supporting affidavit. He avers that he is the duly registered proprietor and title holder of certificate of title IR No.229757 in respect of LR No.209/14478. Further, that vide an application dated 28th July 2025, the 3rd Interested Party sought to be joined in this suit, alleging ownership of a neighboring parcel, LR No.209/10524.Subsequently, the said application was fixed for hearing on 18th September 2025 but it was never served upon him or his Counsel thus they did not attend Court on the said date. Further, that the Court proceeded to treat the said application as unopposed and allowed joinder of the 3rd Interested Party. 4.He contends that upon obtaining the said Order, the 3rd Interested Party for the first time wrote a letter dated 26th September 2025 which was delivered to his Counsel on 7th October 2025. He claims that it is the first time he became aware of the Orders of 18th September 2025, thus he urges the Court to set them aside for non-service and consequent violation of the rules of natural justice. He insists that the 3rd Interested Party has not met the criteria for joinder thus its joinder serves no purpose other than to convolute and delay fair hearing and expeditious disposal of the matter. Response 5.In opposition, the 3rd Interested Party filed a replying affidavit sworn by Hirji Khimji Bhimji Seyani.He avers that the 3rd Interested Party’s advocate on record did serve the Plaintiff’s advocates on 14th August 2025 through the email address provided in their pleadings. He annexed an affidavit of service sworn on 16th September 2025 to that effect and averred that the 3rd Interested Party also demonstrated a stake in the matter, which led to the Court issuing an order for joinder. 6.On its part, the 1st Defendant alleged to have filed a replying affidavit dated 17th February, 2026 in opposition and in support of the 3rd Interested Party's application dated 13th October 2025 but the same does not appear to be available on CTS. Notice of Motion dated 13th October 2025 7.It is filed by the 3rd Interested Party which seeks the following Orders:a.Spent.b.This Honourable Court be pleased to grant leave for the 3rd Interested Party to be joined in these proceedings as the 4th Defendant.c.This Honourable Court be pleased to grant leave to the Plaintiff to further amend its amended plaint dated 10th December,2022 to incorporate the 3rd Interested Party herein as the 4th Defendant.d.That upon grant of prayer 3 above, the Applicant be granted leave to file and serve its statement of defence and counterclaim.e.Costs of this Application be provided for. 8.The application is premised on grounds on its face and on the supporting affidavit of Hirji Khimji Bhimji Seyani.He avers that the 3rd Interested party is the registered proprietor of LR No.209/10524 which directly neighbours the suit property, LR No.209/14478, allegedly owned by the Plaintiff and which is among other properties located at the frontage of the 3rd Interested party’s property being a transport corridor reserved for public use for development of the Trans African Highway (Nairobi Southern Bypass Road) and Embakasi to Kibera Line. 9.He contends that the property being on the frontage of the 3rd Interested Party’s property, 3rd Interested Party approached the 2nd Defendant for authorization of beautification and landscaping, which request was duly approved by the 2nd and 3rd Defendants. Further, that though it has been joined as the 3rd Interested Party, it is desirous of filing a Counterclaim alongside a statement of defence, which it cannot pursue as an Interested Party, thus it seeks to be joined as the 4th Defendant to enable the court to effectually and completely adjudicate and settle all questions in the suit. He insists that no prejudice will be visited upon any party. Response 10.In opposition, the Plaintiff filed a replying affidavit sworn on 23rd October 2025, which mirrors his averments in his supporting affidavit to his Notice of Motion dated 22nd October 2025. 11.In response to the Plaintiff’s reply, the 3rd Interested Party filed a supplementary affidavit, which mirrors its replying affidavit in opposition to the Plaintiff’s Notice of Motion dated 22nd October 2025. 12.The applications were jointly canvassed by way of written submissions Submissions 13.The Plaintiff submits that the 3rd Interested Party was wrongly joined as it fails to satisfy the criteria for joinder as stated in the case of Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR, since it only seeks joinder by virtue of proximity of its land to the suit land. Further, that while it contends that it obtained permission from the 2nd and 3rd Defendants to beautify its property, such permission, even if assumed, does not confer upon it any proprietary rights in the suit property, to warrant joinder. 14.He also submits that the assertion that acts attributed to the 1st Defendant were undertaken at the 3rd Interested Party’s behest, is unsupported by evidence and is an afterthought introduced only after the impropriety of its joinder was brought to the attention of this Court. 15.He argues that the 2nd and 3rd Defendants are public entities legally mandated to address matters relating to road reserves and public infrastructure thus the 3rd Interested Party does not contribute any distinct legal issue. Further, that even assuming the application for joinder was served, the issue before the Court is not whether it was opposed, but whether the Interested party satisfied the legal threshold for joinder. 16.On its part, the 3rd Interested Party reiterates that its stake in the matter is that it owns land adjacent to the suit property herein and that it had been approved by the 2nd and 3rd Defendants to carry out beautification and landscaping on the suit property, a position which no party has fronted and thus the need to file a Counterclaim to secure its interests, which it cannot do as an Interested Party, hence the need to be joined as a 4th Defendant. To this end, it relied on the case of Marigat Group Ranch & 3 others v Wesley Chepkoiment & 19 others [2014] KEHC 2589 (KLR). 17.It also submits that there is a misrepresentation on the part of the Plaintiff that it did not serve him with an application for joinder yet its advocates did serve his, thus this Court’s inherent jurisdiction to set aside its orders cannot be invoked in the circumstances. To this end, it relied on the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR). 18.The 1st Defendant submits that the cause of action herein was directly caused by the 3rd Interested Party who instructed it, to undertake beautification and landscaping on the frontage of their property which covers the suit property, among other properties thus their presence is necessary to conclusively determine the suit and avoid multiplicity of suits. 19.It argues that if the 3rd Interested Party proceeds as an Interested Party, the record from the instant application will give this Court foot print as to how the cause of action occurred but there will be no evidence as to how it did. Further, that if the Plaintiff’s application is allowed, this Court will be left with many questions which may lead to inconclusive determination of the issues and occasion multiple suits from the same cause of action. It urges the Court to exercise its overriding objective under Section 1A of the Civil Procedure Act and its discretion under Order 10 Rule 1 of the Civil Procedure Rules and prioritize complete adjudication of the dispute. 20.To buttress its averments, it relied on the following cases: Criticos & another v Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third party) [2024] KEELC 704 (KLR), Ashraf v Fatehidin & another; Fatehidin - Administrator of the Deceased's Estate Mokowe Traders Limited & another (Intended Defendant) [2024] KEELC 5922 (KLR), Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] КЕНС 2227 (KLR),Pravin Bowry v John Ward & another [2015] KECA 215 (KLR), and Mungania (Suing as the administrator of the Estate of the Late M'Mungania M'Imbwi – Deceased) v Muriira (Sued as an administrator of the Estate of the Late Lawrence Muriira M'Thiruane - Deceased) & 2 others [2024] KEELC 6893 (KLR). Analysis and Determination 21.I have considered the two instant Notice of Motion applications including the respective affidavits as well as submissions, the issue for determination is whether the orders issued on 18th September 2025 joining the 3rd Interested Party as a party to this suit, should be set aside or if the said 3rd Interested Party has met the threshold to be joined in the proceedings as the 4th Defendant. 22.It is not disputed that on 18th September 2025, this Court issued orders joining the 3rd Interested Party in these proceedings. The Plaintiff seeks to set aside the said Orders on the basis that the application dated 28th July 2025, through which the 3rd Interested Party sought joinder, was never served upon him or his advocates thus he was denied an opportunity to be heard and the Orders were obtained in breach of the rules of natural justice. 23.In opposition, the 3rd Interested Party insists that service was duly effected upon the Plaintiff's advocates on 14th August 2025 through the email address provided in their pleadings. 24.On its part, the 3rd Interested Party seeks to be converted into a Defendant to enable it, file a Defence and Counterclaim, on the basis that it is the registered proprietor of LR No. 209/10524, which neighbours the suit property. It also contends that acts complained of by the Plaintiff arose after it obtained approval from the 2nd and 3rd Defendants to undertake beautification and landscaping over the suit property, which it claims, is a public utility plot on the frontage of their property. 25.The 1st Defendant also alleged that it carried out landscaping and beautification of the suit property on instructions of the 3rd Interested Party. 26.In opposition, the Plaintiff insists that the 3rd Interested Party has no stake in the suit as neighbouring the suit property does not confer it any legal interest. It also argues that public authorities already sued are capable of addressing the allegation that the suit property is a public road reserve. 27.On the first issue, the Plaintiff indicates that the orders of 18th September 2025 were irregular as they were entered contrary to the rules of natural justice and he was never served with the application, which culminated in the issuance of the said Orders. 28.On setting aside an order or judgement of a court, in the case of Shah v Mbogo and Another [1967] EA 116 it was held that:“This discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.” 29.Further, in the case of Wachira Karani v Bildad Wachira [2016] eKLR Mativo J (as he then was) held that:“Sufficient cause is thus the cause for which the defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand. There cannot be a straight-jacket formula of universal application. Thus, the defendant must demonstrate that he was prevented from attending court by a sufficient cause...” 30.From the facts before Court, I note the Plaintiff has explained that he was not served with the application for joinder, hence he did not participate in it. I have perused the affidavit of service sworn by Echom Achiro dated the 16th September, 2025 and I wish to reproduce paragraphs 2 and 3 therefrom:2.That on 14th August, 2024, I received a copy of a notice of motion application dated 28th July, 2025 and a court order dated 11th August, 2025 slating the hearing of the said notice of motion application on 18th September, 2025, from the firm of Echom Achiro & Company Advocates with instructions to effect service upon the Defendants and Interested parties.3.That on the same day, I proceeded to serve the 1st, 2nd and 3rd Defendants as well as the 1st and 2nd Interested Parties through their advocates on record email addresses as follows:kenneth@hlaw.co.ke,onyonyaandcompanyadvocates@gmail.com,info@conradlaws.com,I.maruti@kenha.co.ke, and jacqline. Njuguna @ land commission.go.ke .’ 31.From the averments in the said affidavit of service, which I have reproduced above, there is no indication that the Plaintiff was ever served with the impugned application. 32.The Plaintiff has argued that even if he was served with the application for joinder, the 3rd Interested Party does not meet the criteria of an Interested Party. The 3rd Interested Party explains that its land neighbours the suit property. Further, that it was granted permission for beautification of the suit property by the 2nd and 3rd Defendants, and hence it is a necessary party herein. 33.It is trite that setting aside an Order of Court is discretionary and the party seeking to set aside the said Orders has to demonstrate sufficient cause. From the excerpt from the affidavit of service, I find that the Plaintiff was not served with the application where the 3rd Interested Party had sought joinder. 34.In the foregoing, while relying on the legal provisions cited and associating myself with the decisions quoted, I find that the Plaintiff, has demonstrated sufficient cause why the 3rd Interested Party should not be a party to these proceedings and I will proceed to vacate/ set aside the Orders issued on the 18th September 2025 joining the said 3rd Interested Party in the matter, and proceed to remove it, from these proceedings. 35.Since I have already set aside the Orders joining the 3rd Interested Party to these proceedings, I find that the Orders sought in the application dated the 13th October, 2025 where the 3rd Interested Party was seeking to be joined as a 4th Defendant and for the Plaintiff to further amend the amended Plaint to that effect, cannot issue as it is no longer a party to these proceedings. 36.In the circumstances, I find the Notice of Motion application dated 22nd October 2025 merited and will allow it. I however find the Notice of Motion application dated the 13th October 2025 unmerited and will disallow it. 37.Costs in the cause. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF JULY, 2026.CHRISTINE OCHIENGJUDGEIn the presence of:Kamau for PlaintiffMs. Bodo for Maruti for 3rd DefendantAnyande for 3rd Interested PartyOlonde for Onyony for 1st DefendantN/A for 2nd DefendantN/A for 1st and 2nd Interested PartyCourt Assistant: Vena