https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3706

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC NO. E053 OF 2021** **HANSON DEVELOPERS LIMITED…………………..…………………PLAINTIFF** **VERSUS** **SIGNATURE DEVELOPERS LIMITED…………..........………….1ST DEFENDANT** **INSPECTOR GENERAL OF POLICE……………..…..…………2ND DEFENDANT** **AGUKO OSMAN AND COMPANY LTD………….…………..3RD DEFENDANT** **REGISTRAR OF TITLES………………………..…….…..………4TH DEFENDANT** **AND** **EASTERN AFRICA CONSTRUCTION** **LIMITED ……………………….…………...1ST INTENDED INTERESTED PARTY** **RULING** 1. The matter before this Court is an Application by Notice of Motion dated 14/11/2025, brought by Eastern Africa Construction Limited (hereinafter **"the Applicant"** or **"the 1st Intended Interested Party"**), seeking to be enjoined in the present suit as an Interested Party. The Application is premised upon Order 1 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Sections 1A, 1B, and 3A of the Civil Procedure Act, Cap. 21 of the Laws of Kenya, and Articles 50 and 159 of the Constitution of Kenya, 2010. 2. The substantive issue in the main suit relates to the ownership and/or disposal of the suit property known as **RUIRU/RUIRU EAST BLOCK 7/86**. The Applicant, a construction Company, asserts that it executed extensive construction works on the said property for and at the behest of the 1st Respondent, erecting thirty-two (32) three-bedroom flats and a gatehouse, and that it has not been fully paid for its labour. It further avers that the 1st Respondent has acknowledged the outstanding debt and pledged to settle the same from the proceeds of sale of the developed units. On that basis, the Applicant contends that any judicial determination touching on the ownership or disposal of the suit property directly impacts its ability to recover the monies owed. The Applicant thus seeks the following: 3. Spent. 4. **THAT** the 1st Intended Interested Party, EASTERN AFRICA CONSTRUCTION LIMITED, be enjoined in these proceedings as an Interested Party. 5. **THAT** the costs of this application be provided for. 6. **THAT** such further orders as this Honourable Court may deem fit and just. 7. The Application is primarily anchored on the necessity of the 1st Intended Interested Party’s participation to ensure the ends of justice are met. The Applicant contends that a direct contractual and financial nexus exists between itself and the 1st Respondent, specifically arising from the engagement of the Applicant to undertake extensive construction works on the suit property, **RUIRU/RUIRU EAST BLOCK 7/86**. That having successfully executed the development of thirty-two (32) three-bedroom flats and a gatehouse, the Applicant holds a significant stake in the subject matter of the suit, as the outstanding payment for these works remains unsettled. 8. Furthermore, the Applicant asserts that the 1st Respondent has formally acknowledged this debt and committed to discharging the liability from the proceeds of the sale of the developed units. Consequently, any judicial determination regarding the ownership or disposal of the property directly impacts the Applicant’s ability to recover the sums owed. To exclude the Applicant from these proceedings would be to deny them a fair hearing under Article 50 of the Constitution and would likely lead to a multiplicity of suits. Their joinder is therefore essential to enable the Court to effectually and completely adjudicate upon and settle all competing interests and questions involved in the suit. 9. The grounds are further supported through the Supporting Affidavit sworn on 14/11/2025 by **PETER MURIUNGI**, a Director of **EASTERN AFRICA CONSTRUCTION LIMITED**. He confirms that the 1st Intended Interested Party was contracted by the 1st Respondent to carry out the erection of 32 three-bedroom flats and associated external works on the suit property. He substantiates this by annexing the relevant Bill of Quantities which are attached as “**Exhibit PM1”**, which outlines the scope and financial value of the project. 10. The deponent further attests that the Applicant fulfilled its contractual mandate in its entirety, a fact evidenced by the issuance of CompletionCertificatesattached as “**Exhibit PM2”**. Despite this performance and the subsequent approval of the works, he reveals that the 1st Respondent has failed to remit the full amount due. Crucially, he draws the Court’s attention to a Commitment Letter attached as “**Exhibit PM3”**, wherein the 1st Respondent acknowledges the outstanding debt and pledges to settle the same using funds realized from the sale of the property. 11. He emphasizes that the Applicant possesses both legal and equitable interests in the suit property. The deponent expresses a well-founded apprehension that unless enjoined, the Company stands to suffer irreparable loss, as its rights and the security for the unpaid sums will be left unprotected in the final determination of this litigation. 12. The suit is opposed vide the Replying Affidavit sworn on 10/03/2026 by **DANIEL NJOROGE KIHIKO**, a Director of the Plaintiff Company. The Deponent deposes that the Application for joinder is fundamentally misconceived, unmerited, and a frivolous attempt to delay the conclusion of the primary suit. 13. The Plaintiff’s core contention is that the Intended Interested Party has failed to demonstrate a **proximate legal or proprietary interest** in the subject matter of the suit. While the Applicant claims a debt is owed by the 1st Defendant for construction services, the Deponent asserts that such a claim is purely contractual in nature and does not confer any possessory or beneficial interest in the suit property itself. Consequently, the Applicant is a stranger to the question of the ownership and legality of the suit title, which is the singular issue before this Honourable Court. 14. Furthermore, the Deponent argues that the Applicant is at liberty to pursue a separate claim for debt recovery in a Court of competent jurisdiction against the 1st Defendant, rather than seeking to clog the current proceedings. That the presence of the Applicant is not necessary for the effectual and complete adjudication of the dispute between the Plaintiff and the Defendants. 15. The Respondent contends that enjoining the Applicant would unnecessarily broaden the scope of the litigation by introducing extraneous issues of debt that are wholly unrelated to the proprietary dispute. 16. Relying on the legal threshold for joinder as established by the Supreme Court in the landmark case of **Francis Karioko Muruatetu & Another v Republic & 5 Others (2016)eKLR**, the Deponent maintains that the Application fails to meet the requisite criteria. He characterizes the Applicant’s move as forum shopping and a gross abuse of the Court process, urging the Honourable Court to strike out the Application *ipso facto* with costs. 17. By the time of writing this ruling fell to be written, neither party had filed written submissions. Accordingly, the Court has considered the pleadings on record, the Supporting Affidavit of Peter Muriungi sworn on 14/11/2025, and the Replying Affidavit of Daniel Njoroge Kihiko sworn on 10/03/2026. **Analysis and Determination** 1. Having considered the pleadings filed by both sides, this Court identifies the following issues as falling for determination: 2. ***Whether the 1st Intended Interested Party has demonstrated a sufficient personal interest or stake in the present proceedings to warrant its joinder as an Interested Party.*** 3. ***Whether the Applicant has shown that it stands to suffer identifiable prejudice in the event of non-joinder.*** 4. ***Whether the presence of the 1st Intended Interested Party before this Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit.*** 5. ***Whether the joinder of the Applicant would introduce extraneous issues or new causes of action inconsistent with the existing dispute, thereby occasioning prejudice to the existing parties.*** 6. ***Who bears the costs of this Application?*** 7. The law governing joinder of parties in civil proceedings is primarily to be found in Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, which provides 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 effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."*** 1. Further, Order 1 Rule 9 of the Civil Procedure Rules categorically provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties. The Court retains a wide and salutary discretion to deal with the matter in controversy insofar as the rights and interests of parties actually before it are concerned. 2. The overarching mandate of the Court in the exercise of this discretion is grounded in Sections 1A and 1B of the Civil Procedure Act, which impose upon the Court a duty to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. Article 159(2)(d) of the Constitution of Kenya further directs Courts to administer justice without undue regard to procedural technicalities. 3. The governing principles for the joinder of an Interested Party were settled by the Supreme Court of Kenya in the landmark case of **Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR,** where the Court, in its Ruling on applications for joinder, set out three cardinal criteria that an Applicant must satisfy. At paragraph 37, the Supreme Court stated as follows: ***"One must move the Court by way of a formal application. (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. These three principles namely; identifiable interest, proximate prejudice, and distinct submissions have been consistently applied by the Courts as the litmus test for joinder as an Interested Party, and this Court is bound to apply them to the facts herein. 2. In the case of **Communications Commission of Kenya & 4 Others v Royal Media Services Limited & 7 Others [2014] eKLR,** the Supreme Court further cautioned that the Court cannot exercise its discretion to enjoin a party that disguises itself as an Interested Party while in actual fact seeking to institute a fresh cause of action or seeking substantive reliefs that are outside the scope of the pending proceedings. 3. The **Trusted Society of Human Rights Alliance vs. Mumo Matemu & 5 Others (High Court Miscellaneous Civil Application No. 244 of 2014) Justice Odunga** offered an instructive definition of who an Interested Party is, in the following terms: ***"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 the 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."*** 1. Similarly, in **Meme v Republic [2004] 1 EA 124**, the High Court enumerated three grounds upon which joinder may be justified, namely: joinder to achieve complete settlement of all questions involved in the proceedings; joinder to protect the rights of a party who would otherwise be adversely affected in law; and joinder to prevent proliferated litigation. In essence the Court clarified that joinder is not granted as a matter of course. An Applicant seeking to be enjoined must demonstrate a demonstrable stake or relevance in the proceedings and show that they stand to suffer prejudice if denied. 2. However, the threshold for joinder is not without limits. Courts have consistently cautioned that the bar ought not to be set so low as to open the doors to busybodies or spectators who have no genuine stake in the matter. As was stated by Justice Chitembwe in **John Harun Mwau v Simone Haysom & 2 others; Attorney General & 2 others (Interested Parties) [2021] eKLR**. (High Court Civil Suit No. 115 of 2019 (Nairobi)(unreported): ***"A mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one to be enjoined in a suit as an Interested Party. In other words, there needs to be a demonstration that the interest of the person goes further than merely being affected by the Judgment or order. It must be shown that the presence of that person is necessary, so that the issues in the suit may be settled, and that if the person is not enjoined, the Court may not be fully equipped to settle the questions in the suit or may be handicapped in one way or another."*** 1. The Court of Appeal in **Kingori v Chege & 3 Others [2002] 2 KLR 243** also observed that parties cannot be added to a suit so as to introduce quite a new cause of action or to alter the nature of the suit, a principle that this Court is duly mindful of. 2. From consideration of the law, the cases cited, the Applicant's case, as deposed to by Peter Muriungi, its Director, is essentially threefold. First, it avers that it was engaged by the 1st Respondent pursuant to a contract evidenced by a Bill of Quantities as shown by **“Exhibit PM1”** to erect thirty-two (32) three-bedroom flats and associated external works on the suit property. Second, it maintains that it duly executed those works to completion, as demonstrated by the Completion Certificates as shown by **“Exhibit PM2”**. Third, it asserts that the 1st Respondent has failed to remit the full consideration due, but has acknowledged this debt by a Commitment Letter as shown in Exhibit PM3, wherein the 1st Respondent pledged to discharge the outstanding sum from proceeds of the sale of units on the suit property. 3. On the strength of these averments, the Applicant contends that it holds both a legal and an equitable interest in the suit property, as the security for its unpaid debt is directly tied to the property. It fears that if the ownership or disposal of the property is determined without its participation, its ability to recover the sum owed will be irreparably prejudiced. To this end, the Applicant invokes Article 50 of the Constitution of Kenya, which guarantees every person the right to a fair hearing, and urges that its exclusion from proceedings whose outcome bears directly on its financial interests would be a denial of that constitutional guarantee. 4. The Applicant further submits that its joinder is necessary to prevent a multiplicity of suits, a principle rooted in the efficient administration of justice. If this suit proceeds without the Applicant, it would inevitably be compelled to file a separate suit against the 1st Respondent for the recovery of the outstanding debt yet the subject matter of that potential suit is inextricably bound up with the suit property whose fate is being determined in these proceedings. 5. The Plaintiff's opposition, as deposed to by Daniel Njoroge Kihiko, its Director, takes two broad positions. 6. First, the Plaintiff submits that the Applicant's claim is purely contractual in nature and does not give rise to any proprietary or beneficial interest in the suit property. The Plaintiff correctly observes that the primary dispute in the main suit concerns the ownership and the legality of the suit title that being the singular issue before this Honourable Court and that the Applicant's claim is entirely divorced from that question. The Plaintiff urges that there is no common question of law or fact between the Applicant's debt claim and the question of the title, and that the Applicant is, in the language of the law, a stranger to the principal dispute. 7. Second, the Plaintiff insists that the Applicant has an adequate alternative remedy, namely the filing of an independent suit for debt recovery against the 1st Defendant in a Court of competent jurisdiction. It contends that the joinder application is therefore misconceived, and characterizes it as an attempt at forum shopping and an abuse of the Court process. The Plaintiff relies on the test in **Francis Karioko Muruatetu & another v Republic & 5 others [supra]** and urges that the Applicant has failed to meet the requisite threshold. **Final Determination** 1. This Court has considered the rival positions with great care. The determination of this Application turns on the interplay between three competing considerations: the nature of the Applicant's interest in the subject matter, the risk of prejudice in the event of non-joinder, and the risk of expanding the litigation beyond its proper boundaries. 2. On the first consideration the nature of the Applicant's interest, the Court notes that the Applicant's interest in the suit property is not a bare contractual interest in isolation. The Applicant was not merely a supplier of goods or a provider of professional services with no connection to the property. It is the very builder and developer of the thirty-two (32) residential units that now stand on the suit property. The value that was created on the land the physical development that forms the substance of any potential sale or disposition of the property flows directly from the Applicant's labour and enterprise. The 1st Respondent has, on the Applicant's uncontroverted averment, expressly committed to discharging the outstanding payment from the proceeds of sale of the very units the Applicant built. 3. This Court is guided by the reasoning in **Ecobank Kenya Limited v Moru Ridge Limited & another [2020] eKLR (Civil Case E137 of 2018*)*** which in dealing with a materially similar factual matrix involving a construction Company and unpaid invoices for works done on a charged property, engaged at some length with the question of whether such a party could demonstrate an equitable interest in the suit property arising from the construction contract. In that case, the Court accepted that unpaid works, acknowledged by the property owner, give the contractor a cognizable equitable interest in the disposition of the property. 4. The Court in that instance quoted Black's Law Dictionary on the definition of a lien as; ***"A legal right or interest that a creditor has on another's property, lasting usually until a debt or duty that it secures is satisfied."*** 1. The analogy is instructive. The Applicant herein does not merely have a personal claim against the 1st Respondent in the abstract it has a claim whose security and realization are organically linked to the suit property and to whatever orders this Court may make regarding its ownership or disposal. 2. The Plaintiff's contention that the Applicant's interest is purely contractual is, with respect, stated too broadly. It is trite law that a purely contractual debt claims against a party who owns a specific property does not, of itself, create a proprietary interest in that property. However, where, as here, the contract explicitly ties the repayment obligation to the proceeds of sale of the very property before the Court, and where the Court's orders on the ownership and disposal of that property will determine whether the contractual obligation can ever be discharged, the nexus between the contract and the property transcends a mere personal claim. The interest, while arising from contract, is proximate to the subject matter before the Court in a manner that is identifiable and not merely peripheral the precise language of the **Muruatetu** threshold. 3. On the second consideration prejudice in the event of non-joinder the Court finds that the Applicant has articulated a genuine and well-grounded apprehension. If this Court were to make final orders regarding the ownership or disposal of the suit property without the Applicant being heard, those orders could effectively extinguish or substantially impair the security for the Applicant's debt. For instance, if the property were ordered to be transferred to the Plaintiff or to any third party without recognition of the Applicant's outstanding claim, the 1st Respondent’s commitment to pay the Applicant from the proceeds of sale would be rendered a hollow assurance. This Court is guided by the caution of the Court of Appeal in **David Kiptugen v Commissioner of Lands, Nairobi & 4 Others [2016] eKLR**, where it held: ***"We agree ... that whatever the outcome of the appeal, if the Applicant is not joined in this appeal, he will be deprived of an opportunity to be heard on his claim to the ownership of the suit land. That will of course be unconstitutional and against the rules of natural justice."*** 1. The principle of *audi alteram partem* meaning no person should be adversely affected by a judicial determination without being given an opportunity to be heard is a constitutional imperative under Article 50(1) of the Constitution of Kenya, 2010. The Court is not persuaded that this imperative is adequately satisfied by the prospect of the Applicant filing a separate suit after the fact. If a determination in these proceedings effectively forecloses the avenue of recovery pledged to the Applicant, the subsequent suit would offer cold comfort. 2. On the third consideration the risk of expanding the scope of the litigation this Court is mindful of the very legitimate concern raised by the Plaintiff. It is established law that parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit, as the Court of Appeal held in **Kingori v Chege & 3 Others [2002] 2 KLR 243**. Furthermore, the Supreme Court in **Communications Commission of Kenya & 4 Others v Royal Media Services Limited (supra)** warned that the Court cannot allow a party to disguise itself as an Interested Party while in actual fact seeking to institute a fresh cause. 3. This concern, however, does not operate as an absolute bar to joinder in the present circumstances. The Applicant is not seeking to introduce a wholly unconnected claim against an unrelated party. Its claim arises directly from its relationship with the 1st Respondent in respect of the very property before the Court. The common thread; the suit property connects the Applicant's interest to the pending dispute in a manner that satisfies the test of a common question of fact. The Applicant's participation would be confined to articulating its equitable stake in any disposition of the property and ensuring that this Court's orders do not operate to its irreparable detriment. 4. The Court is cognizant of the strong policy rationale for avoiding a multiplicity of suits, which is expressly recognized in Section 1B(1)(b) of the Civil Procedure Act as part of the overriding objective of civil proceedings. The same policy consideration underpins the principle recognized in **Meme v Republic [2004] 1 EA 124** that joinder may be warranted where it prevents a likely course of proliferated litigation. If the Applicant is denied joinder now, it will inevitably be compelled to file a separate suit against the 1st Respondent in respect of the same property, generating parallel proceedings, potential conflicting orders, and an unnecessary burden on the resources of both the parties and the Court. 5. The Plaintiff's characterization of the Application as an abuse of the Court process is, in this Court's view, misplaced. An abuse of process connKtes something more than a claim that is inconvenient to the opposing party or one that would complicate the proceedings. The Applicant's claim is genuine, documented, and tied to the very property at the heart of this suit. There is no material before this Court to suggest that the joinder application is motivated by any collateral or improper purpose. 6. In the final analysis, this Court finds that the Applicant has, on balance, satisfied the three-pronged test in **Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR**. The interest is identifiable and proximate; the prejudice in the event of non-joinder is real and not remote; and the submissions the Applicant intends to advance namely, that any order regarding the property ought to take account of its outstanding claim are sufficiently distinct from what the existing parties will be urging. 7. It bears emphasis, however, that in granting this joinder, this Court is not making any finding, even preliminary, on the merits of the Applicant's claim against the 1st Respondent. The Applicant's status as an Interested Party does not transform these proceedings into a debt recovery suit. Its participation shall be confined to the question of whether and how its stake in the property ought to be recognized in any orders this Court may make concerning the suit property. Any substantive claim for a money Judgment remains a matter for separate proceedings, if the Applicant is so minded. 8. Having considered the pleadings of all parties, the applicable law, and the authorities cited herein, and for the reasons set out above, this Court makes the following orders: 9. ***The Application dated 14/11/2025 is hereby allowed and Eastern Africa Construction Limited is hereby enjoined in these proceedings as the 1st Interested Party.*** 10. ***The joinder of the 1st Interested Party is limited to matters bearing on the disposition of the suit property, RUIRU/RUIRU EAST BLOCK 7/86, and specifically to enabling the Court to consider the Interested Party’s asserted equitable stake in any orders touching on the ownership, transfer, or disposal of the said property. Thus the 1st Interested Party shall not use these proceedings as a platform to seek any substantive money Judgment against the 1st Defendant or any other party; any such claim must be pursued by way of an independent suit.*** 11. ***The 1st Interested Party shall, within fourteen (14) days of the date of this Ruling, file and serve upon all parties a Memorandum of Appearance and a Statement of Interest setting out the specific submissions it intends to make and confirming that those submissions do not replicate the pleadings already on record.*** 12. ***The Plaintiff's apprehension that the joinder may unnecessarily delay or complicate the trial is not without merit. This Court accordingly directs that the joinder of the 1st Interested Party shall not occasion any vacation of hearing dates already fixed.*** 13. ***Each party shall bear its own costs of this Application.*** It is so ordered. **DATED SIGNED AND DELIVERED VIRTUALLY VIA VIDEOLINK ON MICROSOFT TEAMS AT THIKA ON THIS 16TH DAY OF JUNE, 2026.** ………………………… **MOGENI J** **JUDGE** **In the presence of: -** Mr. Ogango for the Plaintiff Mr. Wafula for the 1st Defendant 2nd, 3rd and 4th Defendants - Absent Ms. Kemboi holding brief for Ms. Munyu for 1st Intended Interested Party Ms. Lillian - Court Assistant ………………………… **MOGENI J** **JUDGE**