https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4214

Ndung'u v Charagu & another; (Deceased (Interested Party) (Environment and Land Case E332 of 2022) [2026] KEELC 4214 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEELC 4214 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E332 of 2022 CA Ochieng, J July 8, 2026 Between Benjamin Mwangi Ndung'u Plaintiff and Francis Kiiru Charagu Defendant and Peris Waiyego Mwangi (On Behalf of the Estate of Charagu Karuga (Deceased)) Intended Interested Party and Peris Waiyego Mwangi (On Behalf Of The Estate Of Charagu Karuga (Deceased Interested Party Ruling 1.What is before the Court for determination is the Intended Interested Party’s Notice of Motion dated 11th March 2026, in which she seeks the following Orders:a.Spent.b.That Peris Waiyego Mwangi, Being the Legal Representative of the Estate of Charagu Karuga (Deceased), be enjoined in this suit as an Interested Party.c.That upon being enjoined, the Interested Party be granted leave to participate in these proceedings and file appropriate pleadings on behalf of the Estate of the Deceased.d.That the costs of this Application be in the cause. 2.The application is premised on grounds on its face and on the supporting affidavit of Peris Waiyego Mwangi. She avers that she was granted Letters of Administration in respect of the Estate of the late Charagu Karuga (deceased), and that the suit property, the subject of these proceedings forms part of his estate. Further, that the said Charagu(deceased) and one Abigail Njoki Kiarie (deceased) both worked for the late Honourable John Michuki for more than ten (10) years as a farm supervisor and a house help respectively. She claims through the help of the late Honourable John Michuki, they bought a share in Embakasi Ranching Company Limited, which was a land buying company and were subsequently allocated a residential plot measuring ½ an acre, which they subdivided into two, sold a ¼ to one Eliud Magu Gichimu and moved into the suit premises after retirement in mid 1990s, where they built a residential house and lived together as husband and wife until Charagu Karuga’s death on 28th September 2011 and Abigail Njoki Kiarie’s death a year later. She confirms that they are buried next to each other. 3.She avers that it is just that the estate of (Charagu Karuga) deceased should get a half portion of the suit property while the other half goes to the Plaintiff. She also points out that prior to his demise, the Charagu Karuga (deceased), had instituted Milimani ELC Case No.192 of 2011; Charagu Karuga v Abigael Njoki Kiarie & 2 others, wherein he sought, inter alia, a permanent injunction to restrain the Defendants therein from selling, transferring, disposing of, or in any other manner interfering with the suit property. She contends that unless she is joined in these proceedings, the Estate of Charagu (deceased), risks being condemned unheard. Response 4.The application is opposed by the Plaintiff who insists that the late Charagu Karuga had filed ELC CASE NO. 192 OF 2011, which was in Court for more than a decade before it was withdrawn on 28th February 2019, thus the application is just another attempt to frustrate him in his efforts to recover possession of his land. 5.He also avers that since the matter has already proceeded substantively, it would be highly prejudicial to join any new party at this stage. 6.The Defendant did not file a response. 7.The application was canvassed by way of written submissions. Submissions 8.The Intended Interested Party submits that she has satisfied the legal threshold for joinder as an Interested Party under Order 1 Rule 10(2) of the Civil Procedure Rules, having demonstrated a clear legal interest in the subject matter of the suit, established locus standi through the Limited Grant Ad Litem, and shown that her presence is necessary for the complete and effectual adjudication of the dispute. To buttress her averments, she relied on the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR,and inCommunications Commission of Kenya & 4 Others v Royal Media Services Limited & 7 Others [2014] eKLR. Analysis and Determination 9.I have considered the instant Notice of Motion application including the respective affidavits as well as submissions and the only issue for determination is whether the Intended Interested Party can be joined in these proceedings. 10.The Intended Interested Party claims that she is the legal representative of the estate of Charagu Karuga (deceased), whom she contends co-owns the suit property with one Abigail Njoki Kiarie (deceased). She avers that the said estate risks being condemned unheard, contrary to Article 50 of the Constitution, if she is not joined in these proceedings. 11.On joinder of a party, Order 1 Rule 10 (2) of the Civil Procedure Rules, states as follows:“The court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant or whose presence before the court may be necessary in order to enable the court to effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.” 12.In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR ,the Court defined an Interested Party as follows:“...one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause...” 13.In Meme v. Republic [2004] KLR cited by the Court of Appeal in Pravin Bowry v John Ward and Another [2015] eKLR , it was held that joinder of parties will be permissible:“(i)Where the presence of the party will result in the complete settlement of all the questions involved in the proceedings;(ii) Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and(iii) Where the joinder will prevent a likely course of proliferated litigation.” 14.On perusal of the pleadings herein including documents filed, I note the suit property was registered in the name of the Plaintiff on the 9th September, 2009. Further, that the deceased Charagu Karuga had initially filed ELC 192 of 2011 to claim suit property from the Plaintiff but a Notice of Withdrawal of the said suit was filed on 11th July, 2019. I further note that Charagu Karuga died on 28th September 2011, after the suit property had been registered in the name of the Plaintiff. 15.The Applicant now seeks to be joined in these proceedings claiming she represents the estate of Charagu Karuga who has an interest in the suit property. What she has not explained is that if indeed the estate had an interest in the said suit property, why was the suit that Charagu Karuga had initially filed withdrawn . Further, the Applicant claims the suit property forms part of the estate of the deceased Charagu Karuga, yet the title is registered in the name of Benjamin Mwangi Ndungu who is still alive. Further, the Intended Interested Party except for claiming how the suit property was allegedly acquired has failed to demonstrate whether she resides on the said suit property. It is my considered view that since the title to the suit property was in the name of the Plaintiff prior to the demise of Charagu Karuga, it could not have formed part of his estate. I opine that the Intended Interested Party has not demonstrated how her involvement in these proceedings is necessary to enable the court effectually and completely adjudicate upon as well as settle all questions involved in the suit. 16.Based on the facts as presented and relying on the legal provisions I have quoted, while associating myself with the cited decisions, it is my considered view that since the title to the suit property is not in the name of the deceased Charagu Karuga whose estate the Intended Interested Party is representing, she will not be affected by any decision emanating from this suit. To my mind, I find that she has not demonstrated what prejudice she stands to suffer if she is not joined in these proceedings. 17.It is against the foregoing that I find the Notice of Motion application dated the 11th March 2026 unmerited and will dismiss it. 18.Each party to bear their own costs. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF JULY, 2026CHRISTINE OCHIENGJUDGEIn the presence of:Masankwa for Gakuru for Applicant/ Intended Interested partiesGaita for plaintiffMs. Kinyua for Kiiru for DefendantCourt Assistant: Vena