https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3777

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC E002 OF 2026** AGNES KATHINJA ……………………………PLAINTIFF/RESPONDENT VERSUS NORTHERN GALAXY HOTEL LIMITED…………………………………1ST DEFENDANT /RESPONDENT GUARDIAN BANK LIMITED ………….2ND DEFENDANT /RESPONDENT AND FRIDAH KATHAMBI KIRIMA………….....…….PROPOSED INTERESTED PARTY/ APPLICANT FAITH KANYIRI KIRIMA ……...… PROPOSED INTERESTED PARTY/2ND APPLICANT CAROLYN NTINYARI KIRIMA…………….…. PROPOSED INTERESTED PARTY/3RD APPLICANT **RULING** 1. Before me is the Notice of Motion Application [The Application] dated 04.06.2026; brought pursuant to the provisions of **Order 1 Rule 10[2] of the Civil Procedure Rules and Section 28 of The Land Registration Act, 2012**; and wherein the proposed Interested Parties/Applicants *[hereinafter referred to as the Applicants]* have sought the following reliefs: 2. ***That this Application be certified as urgent and the same be heard exparte in the first instance.*** 3. ***That the Applicants herein be and are hereby joined in this suit as the 1st , 2nd and 3rd Interested Parties, respectively.*** 4. ***That the Applicants be granted leave to file and serve their supporting affidavit together with respective pleadings/responses within 14 days of order.*** 5. ***That leave be granted to the parties herein to amend their pleadings to reflect the joinder of the 1st, 2nd and 3rd interested parties.*** 6. ***That this Honourable court grants such further and other orders as it may deem fit and just to grant.*** 7. ***That cost of the application be provided for.*** 8. The subject application is anchored on various grounds. The grounds are: the suit property *[L R No. Isiolo Township/block V/4]* was previously registered in the name of the father of the Applicants [now deceased]; the suit property was thereafter transferred to and registered in the name of the Plaintiff; the Plaintiff is the mother of the Applicants; the registration of the suit property in the name of the Plaintiff was not intended to vest the Plaintiff with absolute ownership; the registration was to enable the Plaintiff to hold the property on trust; the suit property is subject to customary trust; the Plaintiff is a trustee of the Applicants and her family; and the Applicants have beneficial rights to and in respect of the suit property. 9. Additionally, it has been posited thus: the transfer and registration of the suit property to the 1st defendant was undertaken without due regard to the Applicants rights’; the transfer in question was in breach of customary/family trust; the impugned transfer was undertaken without the knowledge and involvement of the Applicants; the Applicants rights’ to the suit property have been breached; the Applicants rights are overriding interest over the suit property; and the rights in question are protected *vide* **Section 28 of the Land Registration Act, 2012.** 10. Furthermore, the Applicants have contended thus: the Plaintiff had no capacity to transfer the suit property to the 1st defendant; the transfer of the suit property to the 1st defendant was unlawful; the Applicants did not consent to the offensive transfer; and the applicant’s property rights in terms of **Article 40 of the Constitution, 2010,** are bound to be violated and or infringed. 11. The subject application is supported by the affidavit of the 1st proposed interested party sworn on even date. The deponent of the supporting affidavit has reiterated and reaffirmed the grounds on the face of the application. In addition, it has been posited that the applicants’ possess inalienable and vested customary rights to and in respect of the suit property. 12. Moreover, the deponent has averred that the Applicants’ rights to and respect of the suit property stand to be violated/breached, unless the Applicants are joined into the matter as interested parties. Besides, it has been posited that the rights and interests of the Applicants cannot be suitably be protected without the joinder/inclusion of the Applicants. 13. Flowing from the foregoing, the deponent of the supporting affidavit has posited that the Applicants have met/satisfied the threshold for joinder into the subject suit as interested parties. 14. The 2nd defendant/respondent [*hereinafter referred to as the respondent]* has opposed the application *vide* the grounds of opposition dated the 10.06.2026. The Respondent has highlighted various grounds. The grounds include: The application beforehand is incompetent; the application is contrary to the provisions of **Order 1 Rule 13 of the Civil Procedure Rule, 2010;** the Applicants have not met/satisfied the threshold to warrant joinder as interested parties; the Applicants are seeking to reframe the dispute before the court; the applicants cannot be allowed to highjack the cause of action before the court; the Applicants cause of action cannot be determined in respect of the instant matter; and the assertions by /on behalf of the Applicants are at variance with the claim by/on behalf of the Plaintiff. 15. Premised on the foregoing grounds, the 2nd respondent has invited the court to find and hold that the Applicants herein are merely interloping in the matter and that the application is premature; and misconceived. The court has been implored to dismiss the application and to award costs to the respondent. 16. Though the Plaintiff and the 1st defendant were duly served, same did not file any response to the application. Nevertheless, learned counsel for the 1st defendant intimated to the court that the same was supporting the proposed joinder. In particular, counsel conceded the application. 17. Learned counsel for the Plaintiff did not initially signal his support for the application. However, after counsel for the 2nd defendant/respondent had canvassed his position, counsel for the Plaintiff thereafter posited that he was supporting the application. 18. The instant application came up for hearing on the 11.06.2026, whereupon the application proceeded. The advocates agreed to canvass the application by way of oral submissions. 19. Learned counsel for the applicants adopted the grounds on the face of the application, reiterated the contents of the supporting affidavit; and thereafter highlighted various key issues. The issues are: The suit property previously belonged to and was registered in the name of the Applicants father; the transfer of the suit property to the Plaintiff [mother of the Applicants] did not vest in the Plaintiff absolute ownership rights; the suit property is held on trust for the Applicants and family; the transfer of the suit property to the 1st defendant was undertaken in breach of the trust; the Plaintiff was divested to capacity to deal with/transact upon the suit property; the actions of the Plaintiff are unlawful; and the Applicants have a demonstrable interest/stake in the suit and by extension the suit property. 20. Moreover, learned counsel for the applicant has submitted that insofar as the Applicants have a right to or interest over the suit property, their joinder is necessary and appropriate. In addition, it was submitted that unless the Applicants are joined in the matter, their rights will be prejudiced or affected without being heard. To this end, it was contended that the applicant’s rights as pertains to fair hearing shall be breached/violated. 21. In answer to a question from the court as to whether the Applicants’ claims based on customary trust have been canvassed and determined before a court of competent jurisdiction, learned counsel posited that the issue of trust has not been determined elsewhere. 22. Regarding the question as to whether an interested party can be joined for purposes of reframing the issues placed before the court by the primary parties, learned counsel submitted that the applicants have a right to canvass their grievances before this court. Moreover, it was submitted that the crux of the Applicants’ case is customary trust; overriding interest; and legitimate expectations. 23. Flowing from the foregoing, learned counsel implored the court to find and hold that the Applicants have met the threshold and therefore same ought to be joined into the proceedings as interested parties. 1. The respondent adopted the grounds of opposition dated the 10.06.2026 and thereafter highlight four thematic issues. The issues raised are: the application before the court is incompetent; the applicants have not demonstrated a stake/interest in the suit to warrant joinder as interested parties; the Applicants cannot be allowed to reframe the issues placed before the court by the primary parties and to introduce new/fresh cause of action; and the Applicants are merely intent on defeating the cause of justice. 2. Learned counsel for the respondent thereafter cited and referenced the decision[s] of the supreme court in the case of **Isaack M'inanga Kiebia -vs- Isaaya Theuri ... M'Lintari & another [2018] KESC 22 (KLR),** and **Methodist Church of Kenya versus Mohammed Fugicha and others [2019] eKLR**, respectively. 3. Based on the foregoing submissions and coupled with the holding of the supreme court in the decisions [supra], the court has been invited to find and hold that the application is premature, misconceived and legally untenable. Counsel has implored the court to dismiss the application. 4. Having reviewed, the Notice of Motion Application dated 04.06.2026; the supporting affidavit thereto; the grounds of opposition by the respondents; and upon taking into consideration the oral submissions by /on behalf of the parties, two [2] key issues crystalize for determination. The issues are: Whether the Applicants’ have established/proven a demonstrable interest/stake in the suit or otherwise; and whether a proposed interested party/interested party can canvass a fresh/new cause of action as the basis of joinder or otherwise. 5. Regarding the first issue, it is imperative to underscore that whereas courts of law, the court herein not excepted, are seized of discretion to join a party or parties in a suit, either as co-plaintiffs; co-defendants; necessary parties; or interested party [whichever is the case], there is no gainsaying that the party seeking joinder is obligated to demonstrate the basis/foundation underpinning the request for joinder. 6. Put differently, any party who seeks to be joined as an interested party in a subsisting suit, must demonstrate/prove a demonstrable interest or stake in the suit, to necessitate his/her joinder. The stake/interest must be one that is known to law, namely; legal in nature or equitable. Either way, the stake/interest must not be remote or peripheral. 7. In the case of **Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR),** the supreme court [the Apex court], stated as hereunder: ***41.‘Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the Court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the Court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us.*** ***42.Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues, or introduce new issues for determination by the Court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether a new issue to be introduced before the Court.*** 1. Have the Applicants shown/proven a demonstrable stake or interest? The Applicants herein have contended that the suit property previously belonged to and was registered in the name of their father and thereafter same was transferred to and registered in the name of the Plaintiff. However, it is apparent from the documentation that were filed by the Plaintiff, and in particular, the copy of the certificate of title that the suit property was first registered in the name of the Plaintiff. Simply put, the Plaintiff is shown to be the 1st registered owner. 2. Taking into account, the contents of the copy of the lease instrument and the certificate of lease, what comes to mind is that prima facie, the Applicants’ assertions are incorrect. Furthermore, their assertions are misleading and constitute distortion of obvious facts. It is pertinent that a party seeking to partake of and benefit from the discretion of the court cannot anchor his/her plea on the basis of [sic] falsehoods. 3. Additionally, the Applicants have contended that the suit property was being held on trust by the Plaintiff. Furthermore, the Applicants have ventured forward and invoked the plea of customary trust; breach of trust; overriding interest; and legitimate expectations. However, there is no gain saying the that the gravamen of the Applicants’ claim, namely, customary trust has not been proven before a court of competent jurisdiction. 4. I hasten to state that it is not enough to throw assertions/allegations on the face of the court and thereafter imagine that the court would consume the assertions at face value. Instructively, the discretion of the court does and cannot issue for the mere asking. The Applicants were duty bound to prove their assertions as pertains to customary trust. [See the holding of the supreme court in the case of **Isaack M'inanga Kiebia -vs- Isaaya Theuri M'Lintari & another [2018] KESC 22 (KLR), -** **paragraph 52 thereof.]** 5. The importance of justifying the basis or foundation for joinder was illuminated by the Supreme Court in the case of [**Attorney General on Behalf of the Cabinet Secretary, Ministry of Interior and Coordination of National Government v Nguruman Limited & 2 others [2026] KESC 38 (KLR**). 6. The apex court highlighted the following elements as being key to admission of a person as an interested party: 7. **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.** 8. **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.** 9. **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.”** 10. I have agonized over the nature of interest and stake that the applicants have in the suit beforehand. Sadly, I have not discerned any. In any event, what comes to the fore is that the applicants are seeking to highjack the suit proceedings and to canvass issues that do not fall within the four corners of the subject matter. 11. Next is the issue as to whether a proposed interested party, the Applicants’ herein not excepted, can seek joinder in an endeavor to reframe the issues filed the primary parties, or better still whether an interested party, upon joinder can canvass a separate/distinct cause of action. 12. Before interrogating the issue beforehand, it is important to put the facts of the matter into context. It suffices to state that the Plaintiffs claim before the court is that the suit property lawfully belongs to her; the suit property was illegally transferred to and registered in the name of the 1st defendant; the 1st defendant illegally charged the suit property to the 2nd defendant; and the 2nd defendant is now threatening to sell the suit property in exercise of its statutory power of sale. 13. The foregoing factual matrix represents the dispute before the court and thus the cause of action for adjudication. However, the Applicants herein have taken a different trajectory. The applicants contend thus: the suit property was first registered in the name of their father; thereafter the property was transferred to the Plaintiff; the Plaintiff holds the suit property on trust for the applicant and the family; the Plaintiff has breached the trust; and the Applicants have customary trust rights over the suit property. 14. Quite clearly, the Applicants are seeking to reframe the dispute that is before the court and in lieu thereof, the Applicants want to canvass and propagate a separate/distinct cause of action. I do agree with learned counsel for the respondent that the intention of the Applicants is not only to convolute the dispute, but to highjack same for own/ulterior reasons. 15. To my mind, a party cannot seek joinder with the view of canvassing a contradictory cause of action. If anything, the issues being raised by the applicants can only be dealt with in a separate and distinct suit and not otherwise. 16. In the case of **Communications Commission of Kenya & 3 others v Royal Media Servies Limited & 7 others; Nature Foundation Limited (Proposed Interested Party) [2014] KESC 52 (KLR),** the Supreme Court addressed the question as to whether a proposed interested party can be joined with a view to canvassing own/new cause of action. 17. The apex court stated thus: **27. We cannot exercise our discretion to enjoin a party that disguises itself as an Interested Party, while in actual fact merely seeking to institute fresh cause. On this point, we are guided by the principle which we had pronounced in the Mumo Matemo case (at paragraph 24), as follows:** **A suit in Court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”** 1. The foregoing except [supra] answers the plea by the Applicants. Simply put, the Applicants’ forum for canvassing the fresh allegations/cause of action lies elsewhere. **Conclusion** 1. It is the Applicants who had approached the court seeking to be enjoined in the subject matter as interested parties. It was therefore incumbent upon the Applicants to place before the court credible material/evidence to vindicate their proposed joinder. The Applicants failed to place before the court any material. On the contrary, the Applicants’ were content to anchor their plea for joinder on bare assertions; misrepresentations; and distortion of facts. 2. Furthermore, it has become apparent that the Applicants intention for joinder as [sic] interested parties is to enable same to propagate a new cause of action and not to defend their interest or stake. Instructively, the Applicants cannot be allowed to highjack the suit, which has its known owners. **Final orders:** 1. Flowing from the discussion highlighted in the body of the ruling, it must have become apparent that the subject application was/is premature; misconceived; and otherwise legally untenable. 2. Consequently, and in the premises, the final orders that commend themselves to the court are: 3. ***The Application dated 04.06.2026 be and is hereby Dismissed.*** 4. ***Costs of the Application be and are hereby awarded to the 2nd Defendant/Respondent only.*** 5. ***Costs in terms of clause [ii] shall be agreed upon and in default be taxed in the usual manner.*** 6. ***For the avoidance of doubt, the cost shall be borne by the Applicants.*** 7. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 15TH DAY OF JUNE, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** **In the presence of:** Court Assistant: Zakayo/Mukami Ms. Imali for the Proposed Interested Parties/Applicants Mr. Karanja for the Plaintiff /Respondent Mr. Kariuki for the 1st Defendant/Respondent Mr. Mutua Molo for the 2nd Defendant/Respondent