https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1267

Cabinet Secretary, Ministry of Environment andForestry & 4 others v Endorois Welfare Council & 2 others (Civil Appeal (Application) E027 of 2026) [2026] KECA 1267 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1267 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E027 of 2026 JM Mativo, MB Kairaria & AI Hassan, JJA July 3, 2026 Between Cabinet Secretary, Ministry of Environment and Forestry 1st Appellant County Government of Baringo 2nd Appellant The Honourable Attorney 3rd Appellant Kenya Forestry Service 4th Appellant National Land Commission 5th Appellant and Endorois Welfare Council Respondent and Council of Elders Muutani 1st Applicant Lemaitai Mukutani Community forest Association (CFA) 2nd Applicant (Being an application by Council of Elders, Mukutani and Lemaitai Mukutani Community Forest Association (CFA) to be joined in the proceedings as Interested Parties from the ruling of the Environment and Land Court of Kenya at Nakuru (Odeny, J.) dated 31st October 2025 in Civil Appeal (Application) No. E006 of 2025) Ruling 1.By an application dated 4th March 2026, Council of Elders Mukutani and Lemaitai Mukutani Community Forest (CFA) (the applicants) seek leave to be joined in this appeal as interested parties and leave to file and serve submissions and/or any appropriate pleadings within such time as this Court may direct. Lastly, the applicants pray for costs of the application to be in the cause. The application is brought under Rule 77 of the Court of Appeal Rules, 2022; Sections 3A & 3B of the Appellate Jurisdiction Act, Article 159 of the Constitution and all other enabling provisions of the law. However, Rule 77 governs the lodging of a notice of appeal in civil proceedings and it has no relevance in the application before this Court. 2.The application is supported by the annexed affidavit of Jones K. Kirati. Essentially, the grounds in support of the application are:(a)the subject matter of the appeal concerns Mukutani Forest, a gazetted public forest situated in Baringo South Constituency;(b)the land comprising Mukutani Forest was voluntarily surrendered by the Mukutani community, through its traditional leadership structure, for purposes of gazettement as a public forest dedicated to conservation;(c)the Council of Elders Mukutani were central in the community decision-making process leading to the surrender and dedication of the land for environmental protection;(d)the gazettement was undertaken in furtherance of conservation objectives and sustainable environmental management;(e)subsequent to gazettement, Lemaitai Mukutani Community Forest Association (CFA) was duly registered under the Forest Conservation and Management Act and entered into a Forest Management Agreement with the Kenya Forest Service for participatory management of the forest;(f)the CFA derives statutory authority to participate in the protection, conservation and sustainable management of Mukutani Forest;(g)the issues raised in this appeal directly affect the conservation status, governance framework and ecological integrity of Mukutani Forest;(h)the intended interested parties have a direct, identifiable and proximate stake in the outcome of this appeal as the original community custodians who surrendered their land for conservation purposes;(i)the outcome of this appeal may fundamentally affect the forest status and undermine the community’s environmental and conservation interests;(j)unless joined, the appeal may be determined without hearing the very community that voluntarily dedicated the land to the State for conservation;(k)their participation will assist this Court by providing the historical context on the surrender, gazettement process and participatory forest management framework;(l)no prejudice will be occasioned to any party if the application is allowed; and,(m)it is in the public interest and in furtherance of environmental conservation that the application be allowed. 3.The respondent’s counsel Mr. Akango did not file a reply to the application or submissions, though, as shown below, he submitted orally. 4.In support of the application, the applicant filed submissions dated 18th March 2026 basically contending that this Court has inherent jurisdiction grounded in Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159 (2) (d) of the Constitution, to order joinder of a party where necessary for the complete and effectual determination of the issues and thus retains the power to enjoin parties to avert injustice. The applicant’s counsel cited the Supreme Court decision in Trusted Society of Human Rights Alliance vs. Mumo Matemu & 5 Others [2014] eKLR, where the Court held that an interested party is one “who has a stake in the proceedings, though he or she was not party to the cause ab initio... and whose presence is necessary for the court to effectively and completely adjudicate upon the issues before it.” The Court further held that joinder will be allowed where: the party has a personal interest in the matter, the interest is clearly identifiable, the interest will be affected by the decision and the participation will assist the Court in resolving the dispute. Counsel also cited the Court of Appeal decision in Meme vs. Republic [2004] eKLR, where it was held that joinder is proper where “the presence of a party is necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in the matter.” 5.Addressing the question whether the applicants have a direct and proximate interest, counsel contended that the Mukutani Forest was historically community land belonging to the Mukutani community and that the land was later voluntarily surrendered for purposes of gazettement as a public forest while Lemaitai Mukutani Community Forest Association manages the forest pursuant to Section 48 of the Forest Conservation and Management Act, 2016, and surrendered it to the Kenya Forest Service for conservation pursuant to Section 49 of the Act. Thus, the proposed interested parties have an identifiable historical interest, statutory interest, environmental interest, community interest and a constitutional interest. 6.As to whether the applicants will suffer prejudice if not enjoined, counsel submitted that the supporting affidavit shows that the applicants were not joined in the proceedings before the trial court and only became aware of the matter after judgment. Being the managers of the forest, in the event the appeal proceeds in their absence, they will be prejudiced. Counsel maintained that the applicants will assist the Court by providing historical context of the surrender of the land, details of the gazettement process, details of community participation, details of forest management arrangements, environmental conservation context. According to counsel, these matters are central to the dispute. Counsel cited Meme vs. Republic (supra) where this Court held that joinder should be allowed where the party will assist the Court to effectively determine the dispute. Counsel also cited Communications Commission of Kenya vs. Royal Media Services Ltd [2014] eKLR, in which the Supreme Court held that an interested party may be joined where their participation will aid the Court in resolving the issues in dispute. 7.In oral submission, Mr. Akango, the respondent’s counsel argued that there is a danger of adding parties especially at this late stage, that it must be borne in mind that the case belongs to the original parties and there is nothing new the proposed interested parties will add other than convoluting and regurgitating the issues already advanced by the principal parties. 8.A vital starting point is to underscore that joinder of an interested party at the appellate stage is a discretionary relief, not a matter of right and it is governed by strict thresholds to prevent the distortion of litigation. This Court derives its mandate for joinder from inherent powers and applies jurisprudence crystallized by the Supreme Court. The locus classicus decision governing the joinder of an interested party is the Supreme Court decision in Francis K. Muruatetu & Another vs. Republic [2016] eKLR, which determined that an applicant must satisfy three primary parameters. These are:(a)the applicant must demonstrate an identifiable and proximate stake. The applicant’s personal interest must be clearly outlined and distinct, standing completely apart from anything merely peripheral or remote.(b)the applicant must demonstrable prejudice, that is, he must satisfy the Court that he will suffer real, clear and direct prejudice if they are denied the opportunity to be joined.(c)the applicant must satisfy the Court that his submissions are relevant, that is, the applicant must explicitly outline the case or legal arguments they intend to present, demonstrating that their submissions are relevant and not a mere replication of what the primary parties are already raising. 9.Similarly, the Supreme Court in Trusted Society of Human Rights Alliance vs. Mumo Matemu & 5 Others [2014] eKLR defined an interested party as a person who has a recognizable stake or interest in the proceedings, even if they were not a party to the cause from the beginning (ab initio). The decision must be shown to affect them either way prompting a need to personally champion their cause. 10.A critical restriction unique to appellate joinder is that an interested party cannot use the appeal to litigate a fresh dispute or introduce an entirely new cause of action. As was established in Trusted Society of Human Rights Alliance vs. Mumo Matemo & 5 Others (supra), the applicants must take the case as they find it. This means that an interested party cannot introduce new claims, seek distinct reliefs or reframe the pleadings originally settled in the trial court. Their role is strictly bounded by the issues already submitted for appellate review by the primary adversarial parties. However, this Court must evaluate the broader impact of the joinder on the administration of justice and satisfy itself on the following requirements:(a)the underlying appeal must be "alive" and actively pending because joinder cannot revive a dead suit.(b)the presence of the party must not unnecessarily complicate, delay or vex the ongoing appeal.(c)this Court must assess if it can effectively and completely adjudicate all questions without the party. 11.We have applied our minds to the threshold laid down in the above cited cases. Without reiterating the grounds cited by the applicants, we are satisfied that the application before us is merited. Accordingly, we allow the applicants’ application dated 4th March 2026 and order that Council of Elders Mukutani and Lemaitai Mukutani Community Forest (CFA) be and are hereby joined in this appeal as interested parties. However, their participation shall be limited only to filing submissions. There shall be no order as to costs. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JULY, 2026.J. MATIVO................................JUDGE OF APPEALMURUNGI B. KAIRARIA................................JUDGE OF APPEALAHMED ISSACK................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.