https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5289

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCLC NO. E179 OF 2021** **JAMES GACHIENGU MACHARIA GACHUHI- PLAINTIFF** **VS** **EPHRAIM MATHENGE KAMONJOH - 1ST DEFENDANT** **CAROLINE WAITHERA KAMONJOH - 2ND DEFENDANT** **AND** **JOHNSON THAMBIRI - 1ST INTERESTED PARTY** **CATHERINE NDUKU MWANGI - 2ND INTERESTED PARTY** **THE CHIEF LAND REGISTRAR - 3RD INTERESTED PARTY** **THE NATIONAL LAND COMMISSION - 4TH INTERESTED PARTY** **EQUITY BANK (K) LIMITED - 5TH INTERESTED PARTY** **RULING** **(In respect of the 1st and 2nd Interested Parties’ application dated 10/3/2026)** 1. By the Chamber Summons dated 10/3/2026 expressed to be anchored on the provisions of Sections 1/1A,3, 3A & 3B of the Civil Procedure Act and Order 1 Rule 10 and 14 of the Civil Procedure Rules. The Applicants seek the following orders; 2. The Honourable Court strikes out the names of the 1st and 2nd Interested Parties from this suit. 3. The costs of this application be provided for. 4. The application is premised on the grounds that the 1st and 2nd Interested Parties have been wrongly joined to the suit as they have no legal interest in the disputed properties, identified as L.R. Nos. 1490/90 and 1490/96. The applicants state that the only property they jointly owned was L.R. No. 14970/90, which had been charged to Equity Bank and was subsequently sold. On this basis, the Applicants contend that they have no connection to the suit properties and therefore should not be parties to the case. 5. The application is further supported by the affidavit of the first Interested Party, dated the same day. The 1st Interested Party affirms that he and the 2nd Interested Party were jointly registered owners of L.R. No. 14970/90, which was pledged to Equity Bank (Kenya) Limited as collateral for a financial facility of Kshs. 20,000,000/-. He states that they subsequently sold the parcel and no longer possess any interest therein. He affirms that the properties in dispute in the current proceedings are L.R. Nos. 1490/90 and 1490/96, which are separate and distinct from L.R. No. 14970/90. 6. The deponent further states that the Plaintiff has, in any event, not contested the court’s Ruling dated 28/10/2025, in which the court declined to include Equity Bank as an Interested Party, having determined that the Bank’s registered charge pertains to L.R. No. 14970/90, which is separate from the properties subject to this suit. The deponent affirms that neither he nor the 2nd Interested Party has any personal, legal, or beneficial interest in L.R. Nos. 1490/90 and 1490/96. He asserts that their continued participation as the 1st and 2nd Interested Parties is unjustified and prejudicial, as they have never owned or held any interest in the properties in question. Accordingly, the deponent urges that the application to remove the names of the 1st and 2nd Interested Parties from the proceedings be allowed. 7. The Plaintiff opposes the application, as set out in the grounds of opposition dated 9/5/2026, on the basis that it is premature, misconceived, legally untenable, and an abuse of the judicial process. It is contended that the 1st and 2nd Interested Parties were properly joined to the proceedings because of their direct and substantial legal and/or beneficial interest in the suit properties, namely LR Nos. 1490/90 and 1490/96, and that the resolution of the suit will directly affect their rights and liabilities. The Respondent further asserts that the Applicants’ distinction between LR No. 14970/90 (their former property) and the suit properties is artificial, as their involvement in the chain of transactions and registrations leading to the dispute demonstrates their relevance to the proceedings. Given that the suit involves allegations of fraud, irregular dealings, and improper registration of titles and charges, their participation is essential to the comprehensive and effective adjudication of all issues in controversy. 8. The Plaintiff further asserts that the Court's previous Ruling of 28/10/2025 did not establish the suitability of including the 1st and 2nd Interested Parties. Instead, it was confined to the Plaintiff's application to join Equity Bank and other procedural matters. The Plaintiff indicates that, in any event, he has already sought permission to amend the plaint to correct errors in land reference numbers; therefore, the current application is premature. He argues that discharging the Interested Parties at this stage would prejudice his case, lead to multiplicity of proceedings, and deprive the Court of evidence from parties actively engaged in transactions relating to the suit properties and associated titles. Additionally, the applicants have not demonstrated any prejudice that would arise from their continued participation. 9. He asserts that the application is a delaying tactic intended to obstruct the prompt hearing and resolution of the case. Furthermore, he contends that the grounds set out in the application do not satisfy the legal requirements for striking out the applicant’s names. Accordingly, the plaintiff urges the court to dismiss the application with costs in the plaintiff's favour, in the interests of justice. 10. The 1st Interested Party filed a Supplementary Affidavit dated 17/7/2026, maintaining that they were improperly joined to these proceedings, as the suit discloses no cause of action against them. He reiterates his assertion that they have never held any legal, beneficial or proprietary interest in L.R. Nos. 1490/90 and 1490/96. It is deposed that the only property previously owned by the deponent and the 2nd Interested Party was L.R. No. 14970/90, which is separate and distinct from the suit properties and was charged to Equity Bank before being sold. 11. The deponent further asserts that the Plaintiff has failed to particularise the alleged fraud and to establish any nexus between the applicants and the suit properties. The Plaintiff has also failed to demonstrate that the applicants' continued participation is necessary for the effective determination of the dispute, or that any prejudice would arise from their removal. He further cites the Court's ruling of 28/10/2025, which is said to have affirmed that parties without an interest in the suit property ought to be discharged from the proceedings, noting that the ruling has neither been reviewed nor appealed. Accordingly, the 1st Interested Party contends that the continued joinder of the applicants is unwarranted. He prays that the application be allowed as prayed. 12. Pursuant to this Court’s directions, issued by consent of the parties on 7/7/2026, the application was canvassed by way of written submissions. The 1st and 2nd Interested Parties complied and filed their submissions dated 17/7/2026. The Plaintiff, on the other hand, did not file any submissions despite the lapse of the 14 days granted to the parties. The Court has had the opportunity to read the submissions and has considered them in its determination. **Analysis and Determination** 1. Having considered the Application, the Affidavit in support, the Replying Affidavit thereto as well as the 1st and 2nd Interested Parties' submissions, the issues for determination are; 2. Whether the 1st and 2nd Interested Party’s names should be struck out 3. Who should bear the costs of the application. **Whether the 1st and 2nd Interested Party’s names should be struck out** 1. Prior to proceeding with the first issue, it is imperative that the Court briefly review the background of this matter. The suit before the Court was initiated by a Plaint dated 14/12/2020. In summary, the Plaintiff avers that the 1st and 2nd Interested Parties are the current registered proprietors of Land Reference Number LR No. 1490/90. The Plaintiff claims that he entered into a sale agreement on 26/5/1998 with the Defendants for the purchase of Land Reference Numbers LR No. 1490/90 and LR No. 1490/96. He avers that the two parcels were to be amalgamated and subdivided into two equal portions designated as A and B. He further avers that the Plaintiff, who was to take title to Portion B, paid the purchase price as demanded until the Defendants directed a cessation of payments pending completion of the amalgamation and subdivision process. The Plaintiff then took immediate possession and has continuously resided on the land since that date. 2. The Plaintiff avers that, contrary to their agreement, the Defendants fraudulently transferred part of LR No. 1490/90 to relatives without amalgamating or subdividing the property. The Plaintiff further avers that the Defendants have since disappeared and have refused to accept the balance of the purchase price, thereby breaching the agreement and leaving the Plaintiff without any documentation of ownership. 3. On that basis, the Plaintiff seeks inter alia: a permanent injunction restraining the Defendants and their agents from interfering with possession of LR No. 1490/90 and LR No. 1490/96; a declaratory order recognising prescriptive ownership over LR No. 1490/96 and part of LR No. 1490/96, based on over 12 years of undisturbed occupation, together with directions for survey and the issuance of title; an order authorising the deputy registrar or executive officer to execute transfer documents; alternatively, the Plaintiff seeks compensation equivalent to the current land value, as determined by an independent valuer. The Plaintiff also prays for costs of the suit, with interest at 24% per annum from 26/5/1998. 4. Having stated the Plaintiff’s claim, the question of who may be joined in the proceedings as an interested party is settled. As noted in my Ruling of 28/10/2025, joinder of an interested party is governed by Order 1 Rule 10(2) of the Civil Procedure Rules, which defines an interested party as a party whose involvement is necessary for the court to “effectually and completely adjudicate upon and settle all questions involved in the suit”. 5. Further, the Supreme Court of Kenya decision in the case of Trusted Society of Human Rights Alliance versus Mumo Matemo & 5 Others (2014) eKLR defines an interested party as follows: “An interested party is 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.” 1. Unlike the Supreme Court decision cited above, where parties sought to be joined in the suit as interested parties, in the present suit the 1st and 2nd Interested Parties seek to have their names struck out of the suit altogether. Therefore, in deciding whether to grant their request, I am guided by the provisions of Order 1 Rule 10(2) set out above, which identify the questions for resolution before the court. If the presence of these two parties is required for this purpose, they cannot be struck out of the suit. If their presence is not necessary for the court to “effectually and completely adjudicate upon and settle all questions involved in the suit”, they can be released from this suit. 2. I have set out the facts of the Plaintiff’s case. The Plaintiff’s claim is for an order of adverse possession. Although the Plaintiff avers that one of the suit properties, 1490/90, is registered in the names of the 1st and 2nd Interested Parties, they have denied such ownership. In fact, the 1st and 2nd Interested Parties have adduced a Certificate of Lease in respect of LR No. 14970/90, which is evidently a distinct property. The Plaintiff has not stated the relationship, if any, between the two parcels. 3. If, in fact, the 1st and 2nd Interested Parties are the registered owners of LR1490/90, as alleged, the applicants ought to have been sued as Defendants, not as Interested Parties. 4. After careful consideration of the questions raised in this suit, I am reasonably satisfied that the presence of the 1st and 2nd Interested Parties is not necessary for this court to adjudicate and settle the matter. I am satisfied that the 1st and 2nd Interested Parties were not involved in this dispute at all and should therefore be granted their request to have their names struck out. I so find. 5. Accordingly, the application of the 1st and 2nd Interested Parties is allowed as prayed. 6. Each party to bear their own costs. 7. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Virtually in the presence of:** 1. N/A for the Plaintiff 2. N/A for the 1st Respondent 3. Ms Mwaniki HB for Mbogo for the 2nd Respondent 4. Ms Munguti for the 1st & 2nd Interested Party 5. N/A for the 3rd and 4th Respondents 6. CA- Mr Amos