https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4723

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELCLC NO. E108 OF 2025** **GEORGE NGURE KARIUKI ................................................................................. PLAINTIFF** **VERSUS** **JOSEPH WAITUGI BIARU ........................................................................ 1ST DEFENDANT** **KILI OLE SANKAIRE ................................................................................. 2ND DEFENDANT** **AND** **RIPARO PROPERTIES LIMITED ......... PROPOSED INTENDED INTERESTED PARTY** **RULING** ***(In respect of the Notice of Motion application dated 30th April 2026 by the proposed interested party seeking to be joined as an interested party)*** **Introduction** 1. Before this court for determination is the Notice of Motion application dated 30 April 2026. In the said application, the applicant sought orders that: 2. **SPENT** 3. **The Proposed Interested Party be and is hereby enjoined in these proceedings as an Interested Party.** 4. **Pending hearing and determination of this Application and/or further orders of the Court, there be an order preserving the register, survey records and ground position relating to Land Parcel No. Kjd/Olchore Onyore/5010, including maintenance of the status quo as to its boundaries and acreage.** 5. **The District Land Surveyor, Kajiado West, while undertaking the boundary verification pursuant to the Court's orders issued on 19th February 2026, be directed to:** 6. Ascertain, verify and determine the true boundaries, acreage and geo-referencing of Land Parcel No. Kjd/Olchore Onyore/5010; 7. Establish whether Parcel No. Kjd/Olchore Onyore/5010 was subjected to any resurvey, mutation, subdivision or amalgamation after transfer to the Interested Party; 8. Ascertain whether Parcel No. Kjd/Olchore Onyore/5010 was incorporated, wholly or partially, into Title No. Kjd/Olchore Onyore/40824; 9. Identify the survey instruments, mutation forms, registry index map alterations, and approvals (if any) used in effecting the alleged changes. 10. **District Land Surveyor Kajiado West be directed, upon visiting the suit properties, pursuant to the Court's orders of 19th February 2026, to also ascertain, verify and determine the boundaries and acreage of Land Parcel Number Kjd/Olchore Onyore / 5010.** 11. **The District Land Surveyor does file a comprehensive written report in Court within a period to be specified by this Honourable Court.** 12. **Upon receipt and consideration of the Surveyor's report, and if the Court finds that Parcel No. Kjd/Olchore Onyore/5010 was unlawfully resurveyed, amalgamated or interfered with, the Honourable Court be pleased to:** 13. Direct the Land Registrar, Kajiado, to rectify the register pursuant to Section 79 of the Land Registration Act; 14. Reinstate the original registry records, acreage and boundaries relating to Parcel No. Kjd/Olchore Onyore/5010. 15. Cancel any unlawful mutation entries, amalgamation entries or resultant titles, including Title No. Kjd/Olchore Onyore/40824, to the extent that it affects Parcel No. Kjd/Olchore Onyore/5010. 16. **Costs of this Application.** 17. The Notice of Motion rests on grounds set out on the face of the application and the affidavit of Rosaline Serem dated 30 April 2026. Rosaline Serem is a director of Riparo Properties Limited. In the said affidavit, she asserts that Kili Ole Sankaire transferred Land Parcel No. Kjd/Olchore Onyore/5010 to John Francis Hannon. John Francis Hannon on his part transferred the parcel to Riparo Properties Limited. 18. The affidavit further states that Kili Ole Sankaire caused a resurvey of the parcel No. Kjd/Olchore Onyore/5010. The resurvey resulted in the creation of Title No. Kjd/Olchore Onyore/40824. She deposes that Riparo Properties Limited did not authorize the resurvey. The said affidavit contains annexures. The annexures include the deed of title, copies of searches, copies of the register, a form of mutation, a complaint to the land registry, a ruling of the court, and a letter from the surveyor. 19. The plaintiff opposes the Notice of Motion by way of an affidavit dated 28 May 2026. The plaintiff, George Ngure Kariuki, states that the court has already issued directions in the suit. George Ngure Kariuki states the participation of Riparo Properties Limited is not a requirement for the determination of the issues in the suit. He further states that the joinder of Riparo Properties Limited introduces matters outside the confines of the suit. 20. The plaintiff maintains that the application will cause a delay in the determination of the suit. The plaintiff insists that Riparo Properties Limited possesses the liberty to file a suit of their own to determine its claims. **Directions** 1. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. The sole issue that arises for determination is: **whether Riparo Properties Limited has satisfied the legal threshold for joinder as an interested party in these proceedings and, if so, whether the ancillary orders sought in the application ought to issue.** **Analysis and Determination** 1. The jurisdiction of the court to join parties to proceedings is conferred by **Order 1 Rule 10(2) of the Civil Procedure Rules**, which provides: *"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 effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."* 1. The purpose of joinder is to ensure that all persons whose legal rights may be affected by the outcome of litigation are before the court so that the dispute is determined effectually and conclusively. The provision is directed at preventing a multiplicity of suits and ensuring that the court does not render a decision that affects the rights of a person who has not been accorded an opportunity to be heard. 2. The principles governing joinder of interested parties have been settled by the Supreme Court. In ***Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR***, the Court stated: ***"Consequently, an interested party is one who has a stake in the proceedings, though he or she was not a 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 or she appears in the proceedings and champions his or her cause."*** 1. The Supreme Court further elaborated the applicable test in ***Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR***, where it held: ***"One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:*** ***i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.*** ***ii. The prejudice to be suffered by the intended interested party in case of non-joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.*** ***iii. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of*** *what the other parties will be making before the Court."* 1. The foregoing principles require the court to examine whether the applicant has demonstrated a legal interest in the subject matter of the proceedings and whether that interest is capable of being affected by the determination of the suit. 2. The material placed before the court shows that Riparo Properties Limited claims to be the registered proprietor of **Land Parcel No. Kjd/Olchore Onyore/5010**, having acquired the same through a transfer from John Francis Hannon, who had in turn acquired the parcel from the 2nd Defendant. The proposed interested party further alleges that after the transfer, the parcel was subjected to a resurvey without its authority, resulting in the creation of **Title No. Kjd/Olchore Onyore/40824**. It contends that the ongoing boundary verification ordered by the court may directly affect its registered title, acreage and boundaries. 3. These assertions are supported by annexures including copies of title documents, official searches, extracts of the register, mutation documents and correspondence relating to the alleged alterations. At this stage, the court is not called upon to determine the validity of those documents or the merits of the competing proprietary claims. The court is only required to determine whether the applicant has demonstrated an identifiable legal interest in the proceedings. 4. The plaintiff opposes the application on the basis that the intended joinder introduces matters outside the scope of the suit, occasions delay and that the proposed interested party is at liberty to institute his own separate proceedings. 5. Those objections do not answer the central question posed by Order 1 Rule 10(2). The inquiry is not whether the proposed interested party may institute independent proceedings. The inquiry is whether its presence is necessary to enable the court effectually and completely determine the questions before it. The existence of an alternative remedy does not, without more, disentitle a person whose legal interests are directly implicated from participating in proceedings that may affect those interests. 6. The record demonstrates that the allegations concerning Land Parcel No. Kjd/Olchore Onyore/5010 are intertwined with the issues relating to the survey records, boundaries and alleged creation of Title No. Kjd/Olchore Onyore/40824. Should the court proceed to determine those issues in the absence of the person claiming proprietorship of Parcel No. Kjd/Olchore Onyore/5010, there exists the possibility that the resulting decision may affect that party's proprietary interests without affording it an opportunity to be heard. Such an outcome would offend the rules of natural justice. 7. Article 50(1) of the Constitution provides: *"Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body."* 1. Similarly, **Article 25(c) of the Constitution** provides: *"Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—* *(c) the right to a fair trial."* 1. The right to be heard before one's proprietary interests are affected is therefore a constitutional imperative which informs the exercise of the court's discretion under Order 1 Rule 10(2) of the Civil Procedure Rules. 2. The court is therefore satisfied that Riparo Properties Limited has established a proximate proprietary interest in the subject matter of the dispute, has demonstrated the prejudice likely to arise from its exclusion, and has shown that its participation will assist the court in effectually and completely determining the issues arising from the dispute concerning the parcels of land in question. The legal threshold for joinder has therefore been met. 3. Having reached that conclusion, the court turns to the additional substantive prayers seeking preservation orders, expansion of the surveyor's mandate and eventual rectification of the register. 4. The orders issued by this court on 19 February 2026 directed the District Land Surveyor to undertake boundary verification. The proposed interested party seeks to enlarge that mandate by requiring the surveyor to investigate whether Parcel No. Kjd/Olchore Onyore/5010 was subjected to a resurvey, mutation, subdivision or amalgamation, and whether it was incorporated into Title No. Kjd/Olchore Onyore/40824. 5. The court is satisfied that once the proposed interested party is joined, the survey exercise should encompass those matters to the extent necessary for the preparation of a comprehensive factual report. Such directions do not amount to a determination of ownership or validity of title. They merely facilitate the collection of technical evidence that will assist the court in resolving the dispute. 6. The surveyor's report, however, cannot by itself constitute the basis for cancellation of titles or rectification of the register. The proposed interested party seeks orders directing the Land Registrar to rectify the register under Section 79 of the Land Registration Act and to cancel resultant titles upon consideration of the survey report. 7. Such relief is premature. 8. Section 79(1) of the **Land Registration Act, No. 3 of 2012** provides: *"The Registrar may rectify the register or any instrument presented for registration in the following cases—* *(a) in formal matters and in the case of errors, mistakes or omissions not materially affecting the interests of any proprietor;* *(b) in any case and at any time with the consent of all affected parties; or* *(c) if, upon resurvey, a dimension or area shown in the register is found to be incorrect, but in such case the Registrar shall first give notice to all persons appearing by the register to be interested or affected by the correction."* 1. The relief sought under prayer seven calls for findings regarding the legality of the alleged resurvey, mutation, amalgamation and creation of resultant titles. Those are contested matters of fact requiring the reception and testing of evidence during the trial. A survey report is evidentiary material that informs the court's determination; it does not substitute the judicial process of evaluating contested evidence. 2. The Court of Appeal in ***Mbaki & Others v Macharia & Another [2005] 2 EA 206*** observed that: ***"The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be determined without affording him an opportunity to be heard."*** 1. Issuing orders cancelling titles or directing rectification of the register before hearing all affected parties and evaluating the evidence would amount to determining substantive rights at an interlocutory stage. That is a course the court cannot take. 2. The prayer seeking preservation of the register, survey records and the existing ground position stands on a different footing. Preservation orders serve the purpose of maintaining the subject matter of litigation pending determination of the dispute. In view of the competing claims regarding the survey records and boundaries, and considering that the survey exercise is yet to be undertaken, preservation of the existing position is necessary to ensure that the dispute is not rendered academic before trial. 3. Accordingly, the court finds merit only in those prayers necessary to facilitate the participation of the proposed interested party and the proper investigation of the matters in controversy. The prayers seeking final reliefs by way of rectification of the register and cancellation of titles are declined, those questions being reserved for determination upon the hearing of the suit after all evidence has been received and evaluated. 4. In the end result, the Notice of Motion dated **30 April 2026** partially succeeds and the court makes the following orders: 5. **Riparo Properties Limited** is hereby enjoined in these proceedings as an **Interested Party**. 6. The Interested Party shall file and serve the documents it intends to rely upon, within **fourteen (14) days** from the date hereof. 7. The Plaintiff and the Defendants shall be at liberty to file and serve any further documents within **fourteen (14) days** of service by the Interested Party. 8. The orders issued by this Court on **19 February 2026** directing the **District Land Surveyor, Kajiado West**, to undertake a boundary verification are hereby varied to the extent that the surveyor shall, in addition to the matters previously directed by the Court: ascertain, verify and determine the boundaries, acreage and geo-referencing of **Land Parcel No. Kjd/Olchore Onyore/5010**; establish whether the parcel was subjected to any resurvey, mutation, subdivision or amalgamation after its transfer to the Interested Party; ascertain whether **Land Parcel No. Kjd/Olchore Onyore/5010** was incorporated, wholly or partially, into **Title No. Kjd/Olchore Onyore/40824**; and identify the survey records, mutation forms, Registry Index Map alterations and approvals, if any, relating to the alleged alterations. 9. The District Land Surveyor shall file a comprehensive written report within **sixty (60) days** from the date hereof, or within such further period as the Court may direct. 10. Pending the hearing and determination of the suit, the parties shall maintain the **status quo** in respect of the register, survey records, boundaries, acreage and ground position relating to **Land Parcel No. Kjd/Olchore Onyore/5010**, and no party shall undertake or procure any dealings, alterations, resurvey, subdivision, amalgamation or other acts capable of affecting the subject property without leave of the Court. 11. The prayers seeking orders directing the **Land Registrar** to rectify the register, reinstate original records, cancel mutation entries, amalgamation entries or resultant titles, including **Title No. Kjd/Olchore Onyore/40824**, are **declined**, the same being substantive remedies that can only be determined upon the hearing of the suit after the evidence has been received and tested. 12. The costs of the Notice of Motion dated **30 April 2026** shall abide the outcome of the suit. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 21st Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Ngotho for the Plaintiff Mr. Kinoti h/b for Mr. Mwiti for the 1st Defendant Ms. Masomi for the 2nd Defendant Mr. Chebon for the Interested Party Court Assistant: Alex **M.D. MWANGI** **JUDGE**