https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4233

Kamau v Attorney General & 11 others (Environment and Land Petition E008 of 2025) [2026] KEELC 4233 (KLR) (Environment and Land) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4233 (KLR) Republic of Kenya In the Environment and Land Court at Naivasha Environment and Land Environment and Land Petition E008 of 2025 MC Oundo, J July 9, 2026 IN THE MATTER OF ARTICLE 3 (1), 22 (1) & (2), 162 (2) (b), 165 (3) (b), 258 (1) THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE VIOLATION/THREAT TO VIOLATION OF RIGHTS AND FUNDAMENTAL FREEDOM UNDER ARTICLES 10, 42 (a), 60, 69(1) (a), (d), (h), 55,56 OF THE CONSTITUTION OF KENYA 2010ANDIN THE MATTER OF PHYSICAL AND LAND USE PLANNING ACT, 2019 AND IN THE MATTER OF ENTRY AND CONSTRUCTION OF AFFORDABLE HOUSING ON STADIUM LAND SITUATED IN NAIVASHA, NAKURU COUNTY Between Davis Njuguna Kamau Petitioner and The Hon. Attorney General 1st Respondent The National Land Commission 2nd Respondent The Ministry Of Lands, Public Works,Housing & Urban Development 3rd Respondent The State Department Of Housing &Urban Development 4th Respondent Affordable Housing Board 5th Respondent County Government Of Nakuru 6th Respondent and Pharis Ndung’u Chege 1st Intended Interested Party Michael Mutai 2nd Intended Interested Party Isaac Mungai Kamau 3rd Intended Interested Party Ibrahim Karanja 4th Intended Interested Party Samuel Ndung’u Kimani 5th Intended Interested Party Michael Mugo 6th Intended Interested Party Ruling 1.What is before me for determination is the Intended Interested Parties’ Notice of Motion Application dated 6th March 2026 brought pursuant to the provisions of Order 1 Rule 10 of the Civil Procedure Rules, Section 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Order 1 Rule 10 (2) and Order 51 of the Civil Procedure Rules and Under the Sugar Act 2024, Under Article 1,2,10, 19, 22, 23, 27, 40, 46, 47, 50, 159 & 165 and 258 of the Constitution of Kenya, 2010 and all other enabling provisions of the Law where they seek to be joined in to the suit and to be granted leave to file their response and pleadings to the Petition. 2.The said Application is premised on the grounds set out therein and on a Supporting Affidavit of even date sworn by the 1st Intended Interested Party herein, Pharis Ndungu Chege, an advocate swearing this affidavit on his own behalf as the intended interested parties to the effect that the origin of title of the disputed land was originally parcel L.R 23400, owned by the Delamere Estate. It was subdivided into L.R 23400/1, allotted to Naivasha Municipal Council for a stadium) and L.R 23400/2, allotted to the deponent and 24 other allottees via allotment letters dated August 2006 and January 2007. 3.L.R 23400/2 was further subdivided, and valid individual land titles were issued. That he is the registered owner of L.R 28211/22 (Property I.R No. 96423/2) and was a Petitioner in Nakuru Constitutional Petition No. 20 of 2014. 4.He asserted that Delamere Estate had never revoked the allotment or lawfully cancelled their titles; therefore, they remain the legally protected, registered proprietors who have consistently paid land rates but are currently barred from utilising their properties because the Respondents are attempting to invade the land to construct affordable housing. 5.He argued that if he and the other four allottees are not joined in the lawsuit as interested parties, they risk being condemned unheard, which will negatively impact their property claims and interests. That the application to be joined was brought at the earliest opportunity to prevent future legal contests, appeals, or reviews stemming from the omission of necessary parties. 6.In response to the Intended Interested Parties Application, the Petitioner vide his Replying Affidavit dated 13th April 2026 opposed the application asserting that it was incompetent, legally flawed, misconceived, and an abuse of the court process that should be dismissed with costs. 7.That the Applicants had failed to demonstrate a direct, substantive, and legally protectable interest in the suit property wherein their presence was not required for the court to resolve the main dispute. 8.That the application was frivolous, vexatious, and intended to delay the swift resolution of the case while unnecessarily complicating the proceedings wherein the main lawsuit concerned the construction of affordable housing on land parcel L.R. No. 23400 (formerly the UNS Plot for Stadium - Naivasha Municipality). 9.He noted that the allotment letters relied upon by the Applicants had already been lawfully nullified in Nakuru HCC (sic) Petition No. 20 of 2014, which decision had also been upheld by the Court of Appeal in Civil Appeal Nos. 27, 28, 29, 30 & 31 of 2019. 10.That because the Court had already conclusively determined the matter, the principle of res judicata was applicable, meaning the Applicants' claims had been entirely extinguished and cannot be reopened. 11.He highlighted that Delamere Estate Limited (the original owner) previously disowned the Applicants' allotments on the basis that they were procured through fraud and misrepresentation, concluding that the Applicants are not necessary parties because no legal remedies had been sought against them, and no future court orders will affect them in any legally recognizable way. Consequently, their application ought to be dismissed. 12.In a rejoinder, the Intended Interested Parties filed vide their Further Affidavit dated 30th April 2026 sworn by Pharis Ndung’u Chege, reiterated that the original parcel, L.R. 23400, no longer exists as a single block having been subdivided. That their titles originated from the subdivision L.R. 23400/2, and these titles remain intact and registered under their names. 13.He firmly denied that Delamere Estate, the courts, or any competent authority ever lawfully revoked their allotments or cancelled their individual titles in Nakuru HCC (sic) Petition No. 20 of 2014 and the subsequent Court of Appeal case (Civil Appeal Nos. 27–31 of 2019), highlighting specific findings from both courts showing that the validity of their titles was never actually determined. 14.That the past cases only dealt with the alleged violation of their constitutional rights under Articles 40, 47, and 50, and did not deal with the ownership itself. Therefore, he principle of res judicata did not apply because the issues and parties are different. 15.He pointed out that the Petitioner is heavily relying on court documents from their (Applicants') past lawsuits to build his current case against the affordable housing project; therefore, the Petitioner cannot use their (Applicants') past legal documents to support his case while simultaneously arguing that they have no standing to participate in the suit. If the matter truly were res judicata, the Petitioner's own case would be invalid. 16.He concluded by deponing that since the affordable housing project was being planned on land that overlaps with their validly registered subdivisions, they had a direct stake in the outcome. Denying them entry would condemn them unheard. That their presence was necessary for the court to reach a just and complete determination. 17.The matter was disposed of by way of written submissions which I shall summarize as hereunder: Intended Interested Party’s submissions 18.Vide their Submissions dated 5th May 2026, the Proposed Interested Parties, after summing up a brief introduction to their submissions, highlighted their issues for determination as follows:i.Whether the interested party is a necessary party to the suit;ii.Who should bear the costs of the Application? 19.They then proceeded to submit that the core objective in seeking to be joined to the suit was because they possess a legally recognisable and enforceable interest in the lawsuit, wherein the past court rulings did not invalidate their land titles. That they held vital evidence needed by the Court to reach a fair determination. 20.They reiterated that the original land block (L.R. No. 23400) was subdivided, wherein they own valid titles stemming from L.R. No. 23400/2 (including L.R. 28211/22), which covers the area targeted for the affordable housing project. 21.They argued that the Petitioner was "lost in the thickets" of past judgments and cited the exact wording from Nakuru HCC (sic) Petition No. 20 of 2014 and Civil Appeal Nos. 27–31 of 2019, demonstrating that both courts explicitly stated they were not determining the validity of the titles, but rather handling constitutional rights violations. 22.That because no competent court or authority had ever lawfully revoked their individual titles, they remained the lawful, registered proprietors and any decree issued regarding this land directly impacted their property rights, making them necessary parties under Order 1 Rule 10(2) of the Civil Procedure Rules. 23.They further submitted that the Petitioner’s case heavily relied on documents and pleadings originally generated by themselves (intended interested parties) in those past suits and therefore the Petitioner could not approbate and reprobate their past legal documents to build his case while simultaneously arguing they are strangers with no standing due to res judicata. They contend that if the matter were truly res judicata, the Petitioner's own suit would be legally dead. That, as the originators of those documents, they are uniquely positioned to assist the court if any questions should arise concerning them. 24.They thus submitted that they had met the established legal threshold as proper and necessary parties whose presence was vital to effectively settle the dispute, for which the court should grant the joinder application and award them the costs of the application. 25.In support of their application, they cited the following authorities:i.Bwire -versus- Waivo Sailoki [2022] KEHC 7 (KLR) to caution the court against blindly matching the "colour" of past cases, arguing that the Petitioner was lost in the "thickets and branches" of past judgments.ii.The Court of Appeal ruling in Pravin Bowry -vs- John Ward & Another [2015] eKLR, which adopted the Uganda Supreme Court precedent Deported Asians Property Custodian Board -vs- Jaffer Brothers Ltd [1999] 1 E.A 55 (SCU), to argue that they must be joined because the court's final orders regarding the land will directly affect their proprietary interests.iii.They re-analyzed the text of Nakuru HCC (sic) Petition No. 20 of 2014 (Paragraph 56) and Civil Appeal Nos. 27, 28, 29, 30 and 31 of 2019 to show that both courts explicitly stated they were not determining the validity of the titles, meaning the issue of ownership was not res judicata.iv.King’ori vs. Chege & 3 Others (2002) eKLR, to lay down the four core criteria of a necessary party (necessary party, proper party, decree cannot be enforced without them, and presence enables complete adjudication), asserting that they had met all four. Petitioner’s Submissions. 26.In opposition to the application, the Petitioner, in his submissions dated 28th April 2026, framed his issues for determination as follows;i.Whether the Intended Interested Parties/Applicants have met the conditions for joinder as interested parties in the suit.ii.Costs 27.He argued that the joinder application was frivolous and an abuse of court process. That the Applicants did not meet the legal criteria established by the Supreme Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others SC Petition (Application) No 12 of 2013 to qualify as an interested party: 28.That the dispute revolved around the construction of affordable housing on L.R. No. 23400 (formerly the UNS Plot for Stadium) which was a public land managed by the 2nd Respondent, thus giving the Applicants no legal standing. 29.He further submitted that the allotment letters the Applicants sought to rely on were already lawfully nullified in Nakuru HCC (sic) Petition No. 20 of 2014 and upheld by the Court of Appeal in Civil Appeal Nos. 27–31 of 2019 and because of these binding judicial rulings, the Applicants’ interest was legally dead, making them "strangers to these proceedings." 30.Citing the decision in Mungai & 2 Others v Kanyotu; Ndungu (Proposed Interested Party) [2025] KEELC 6587 (KLR), the Petitioner argued that bringing in the Applicants would introduce unnecessary side-issues, cause delays, and obstruct the resolution of the main petition. The Applicants were raising substantive questions regarding land ownership and property rights. The Petitioner argues that such private property disputes could not be properly litigated within a constitutional Petition concerning public land. 31.In conclusion, the Petitioner sought for the Court to dismiss the application for joinder with costs. Determination. 32.I have considered the Application herein for joinder of the interested parties, the response by the Petitioner, the Parties' written submissions, the law and the authorities herein cited. 33.Briefly, vide a Petition dated the 3rd November 2025, the Petitioner herein sought for the following orders against the Respondents;i.That a declaratory order be issued that the Respondents’ construction of affordable housing project on land known as L.R No. 23400 (formerly UNS Plot for Stadium-Naivasha Municipality Ref No. 19447/XXII) situated in Naivasha sub-county within Nakuru County is a violation of the Petitioner’s rights and other affected persons not in the proceedings herein as enshrined in Article 10, 42(a), 60, 69 (1) (a) (h), 55, 56 of the Constitution.ii.An order of permanent injunction restraining the Respondents, their agents, employees, successors in office or any other person acting under their authority from entering, remaining, or constructing affordable housing on a parcel of land known as L.R No. 23400 (formerly UNS Plot for Stadium-Naivasha Municipality Ref No. 19447/XXII) situated in Naivasha sub-county within Nakuru County.iii.An order be issued that the Respondents herein to remove themselves, their agents, servants and/or assignees from the parcel of land known as L.R No. 23400 (formerly UNS Plot for Stadium-Naivasha Municipality Ref No. 19447/XXII) situated in Naivasha sub-county within Nakuru County, failure of which an eviction order be issued against them.iv.Orders be issued, in appropriate terms, affirming in favour of the fundamental rights of the Petitioners.v.Costs of the Petition be borne by the Respondents. 34.In the course of taking directions to dispose of the Petition, the interested parties sought to be joined to the suit for reasons that they are the legally registered owners of individual land parcels (such as L.R. 28211/22) that were subdivided from L.R. 23400/2 and because the Respondents intended to construct affordable housing on this exact land, any decision the court makes will directly impact, and potentially extinguish, their property rights and therefore as legitimate titleholders, they had a constitutional right to be heard. That if the case proceeded without them and the court issued binding orders regarding their land without their input, they would be left with no legal recourse to protect their claims. 35.They strongly disputed the Petitioner's claim that their land ownership was res judicata past lawsuits in Nakuru HCC (sic) Petition No. 20 of 2014 and Civil Appeal Nos. 27–31 of 2019, contending that the courts explicitly stated they were not ruling on the validity of the titles. That since no competent authority had ever lawfully revoked their deeds, they remained the valid owners. 36.Their case was that since the Petitioner had heavily built his case using court documents and pleadings originally filed by themselves (interested parties) in past suits, it would be procedurally unfair for the Petitioner to use their documents while simultaneously trying to lock them out of the case. 37.That as creators and original custodians of those past legal documents, their presence was necessary to help the court accurately interpret the evidence, prevent a multiplicity of future lawsuits, and reach a complete and just determination. 38.In opposition to the application, the Petitioner’s argument was that the dispute was strictly about the construction of affordable housing on public land (L.R. No. 23400, formerly the Naivasha Municipality Stadium plot). Because the land is public and under the custody of the government (the 2nd Respondent), the Applicants had no private, protectable legal interest in it. 39.He asserted that the allotment letters the Applicants based their reliance on were already formally nullified by the High Court (sic) in Nakuru HCC (sic) Petition No. 20 of 2014, a decision that was firmly upheld by the Court of Appeal in Civil Appeal Nos. 27–31 of 2019. Therefore, under the principle of finality of litigation, their alleged property claims are dead, and they are complete "strangers" to this suit. 40.He argued that joining these parties to the Petition would introduce irrelevant, complex side-issues regarding private ownership into what was a straightforward public-interest constitutional petition because the Applicants were trying to litigate substantive, private property ownership disputes which were different from a constitutional petition dealing with the management of public land. 41.That the Petition did not seek any legal remedies or orders against the Applicants and therefore did not legally affect them or their extinguished claims. Their presence was therefore completely unnecessary for the court to resolve the main dispute. 42.Having summarized the parties' positions, I find the issues for determination as follows:i.Whether or not this case is res judicata, Nakuru HCC (sic) Petition No. 20 of 2014, and Court of Appeal Civil Appeal Nos. 27–31 of 2019. If not,ii.Whether the Intended Interested Parties meet the legal threshold for joinder. 43.It is trite that where an issue has been raised that seeks to oust the jurisdiction of the court to try the matter before it, such issue must be disposed of in the first instance. Attention of the court having been drawn to a previous case in Nakuru HCC (sic) Petition No. 20 of 2014, and Court of Appeal Civil Appeal Nos. 27–31 of 2019 whereon there had been a final determination, and being mindful of the principle of Res judicata, which bars or precludes parties from re-litigating a claim or issue that has already been decided by a competent court, thus ousting the jurisdiction of the court to try the subsequent matter, I am mindful to make a determination on this aspect in the first instance. 44.I have gained sight of the Nakuru Court of Appeal Civil Appeal Nos. 27–31 of 2019 reported as Chege & 4 others v Attorney General & 16 others [2025] KECA 884 (KLR) which confirms that Petition No. 20 of 2014 was initially filed in the Nakuru High Court before being transferred to the ELC, where it retained the same case number. The decision by the Court of Appeal herein raises compelling arguments for both sides. 45.The Petitioner contends that the Intended Interested Parties are complete strangers to these proceedings because their underlying allotment letters and derivative titles (emanating from subdivisions of L.R No. 23400/2) were lawfully impeached in Nakuru HCC (sic) Petition No. 20 of 2014 and subsequently upheld on appeal. The Petitioner argues that re-litigating this ownership issue breaches the principle of finality of litigation as captured in Section 7 of the Civil Procedure Act. 46.Conversely, the Intended Interested Parties argued that neither the High Court (sic) nor the Court of Appeal made a definitive or terminal finding nullifying their land titles. They relied heavily on the explicit record of the Court of Appeal, which observed as follows at Paragraph 26:“We do not think it would have been fair for the learned Judge to go ahead and make a definite finding that the appellants’ titles were valid or invalid... It would also be inappropriate for this Court to make such a finding." 47.To satisfy the plea of res judicata, it must be demonstrated that the matter in issue was directly and substantially in issue in a former suit between the same parties, and was heard and finally determined by a competent court. 48.A painstaking read of the Court of Appeal’s decision reveals a unique judicial scenario. The appellate court, by textual analysis, deliberately declined the invitation to make a final declaration of nullity regarding the physical title deeds held by the Applicants. The Court noted that because the previous matter proceeded strictly by way of affidavit evidence, it was procedurally incapable of unravelling the highly contentious, competing fraud allegations raised by Delamere Estate Limited regarding the procurement of those titles. The Court cited the Supreme Court authority in Fanikiwa Limited & 3 others v Sirikwa Squatters Group & 17 others [2023] KESC 105 (KLR)to reaffirm that testing the veracity of such titles required viva voce evidence, cross-examination, and a full trial. 49.Because the superior courts consciously left the ultimate question of the titles’ absolute validity open, declaring that it merely lingers, this Court finds that the strict technical threshold of res judicata, requiring a matter to be finally determined, has not been met and the titles have not been formally cancelled by a decree of a competent court. 50.On the Threshold for Joinder as an Interested Party, having cleared the hurdle of res judicata, the Applicants ought to have satisfied the rigorous conditions for joinder. The Supreme Court of Kenya in Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others; Nature Foundation Limited (Proposed Interested Party) [2014] KESC 52 (KLR) held as follows“In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held: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…” 51.By this holding, the Supreme Court crystallised that an interested party must demonstrate an identifiable stake, a personal interest, or a legal duty that will be directly affected by the outcome of the litigation. Furthermore, under Order 1 Rule 10(2) of the Civil Procedure Rules, a party must be shown to be necessary to enable the court to effectually and completely settle all questions in the suit. The said provision of the law 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.’’ 52.The Intended Interested Parties claim that because the affordable housing project overlaps with their registered subdivisions (such as L.R. 28211/22), they risk being condemned unheard. They further raise an equitable estoppel argument, asserting that the Petitioner cannot approbate and reprobate by relying on their past court records while locking them out of the current suit. 53.While this Court notes the clever procedural gymnastics surrounding the Petitioner's reliance on past documentation, it cannot turn a blind eye to the substantive findings of the Court of Appeal regarding the nature of the Applicants' interest in a constitutional forum. 54.The Court of Appeal explicitly held in Paragraph 31 of its judgment as follows:“There could not have been violation of the right to property where that right was based on questionable ownership documents." 55.The Appellate Court reached a final determination that when Delamere Estate donated the 26.93 acres of land to the Naivasha Municipal Council, it was done with the sole and exclusive purpose of constructing a stadium, and that any subsequent sub-division to the Applicants faced headwinds under Section 26 of the Land Registration Act due to established material misrepresentations. 56.Crucially, the Court of Appeal determined that these specific titles cannot anchor or sustain a claim of constitutional violation under Articles 40, 47, and 50 of the Constitution within a constitutional petition framework. 57.The suit before this Court is a Constitutional Petition dealing with the implementation of a public project (affordable housing) on land designated historically for public/municipal utility. As was held by this Court in Mungai & 2 other v Kanyotu; Ndungu (Proposed Interested Party) [2025] KEELC 6587 (KLR), joinder must be denied if it serves only to inject complex, private land disputes into a constitutional platform, thereby occluding the primary controversy and causing unwarranted delay. 58.If the Intended Interested Parties wish to affirm the legitimacy of their titles, clear their names of allegations of fraudulent misrepresentation, and seek boundaries enforcement, their proper legal path, as explicitly directed by the Supreme Court in the Fanikiwa case (supra) and echoed by the Court of Appeal, in Chege & 4 others case (supra), is to initiate an independent, substantive land claim driven by oral evidence in the Environment and Land Court. They cannot use the back door of joinder in a constitutional petition to breathe life into titles that a superior court has already declared incapable of surmounting a constitutional threshold. 59.Consequently, the Applicants have failed to demonstrate a legally protectable, proximate interest that is sustainable within the precise confines of this Constitutional Petition. Their presence is not necessary for this Court to determine whether the Respondents' state-backed housing project violates the specific public and environmental laws cited by the Petitioner. 60.Up against the aforementioned legal realities, the Intended Interested Parties’ Application for Joinder dated 6th March 2026 is hereby dismissed with costs. DATED AND DELIVERED VIA MICROSOFT TEAMS AT NAIVASHA THIS 9TH DAY OF JULY 2026.M.C. OUNDOENVIRONMENT & LAND COURT– JUDGE