https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4959

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E076 OF 2025** **JOSEPH KIO KATHYAKA::::::::::::::::::::::::::::::::::::::::::1ST PLAINTIFF** **JOSHUA ODERO ARWA::::::::::::::::::::::::::::::::::::::::::::2ND PLAINTIFF** **VERSUS** **GEOFFREY OMONDI OHANGA::::::::::::::::::::::::::::::::1ST DEFENDANT** **EDWIN SITIENEI::::::::::::::::::::::::::::::::::::::::::::::::::::2ND DEFENDANT** **MARTIN MUNENE::::::::::::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT** **ISAAC KOSKEI::::::::::::::::::::::::::::::::::::::::::::::::::::::4TH DEFENDANT** **NATIONAL SOCIAL SECURITY** **FUND BOARD OF TRUSTEES::::::::::::::::::PROPOSED 5TH DEFENDANT** **CHIEF LAND RGISTRAR::::::::::::::::::::::::PROPOSED 6TH DEFENDANT** **RULING** The application is dated 24th September 2025 and is brought under Order I Rules 3, 10(2) and 14, Order 11 Rule 3 of the Civil Procedure Rules, 2010, Section 1A, 1B and 3A of the Civil Procedure Act seeking the following orders; 1. That this application be certified urgent and be heard ex parte in the first instance. 2. That this Honorable court be pleased to strike out the Defendants herein from this suit. 3. That the National Social Security Fund Board of Trustees and the Chief Land Registrar, Nairobi be enjoined as Defendants in this suit. 4. An order do issue consolidating the instant suit with Machakos ELCLC E017 of 2025 Syokimau Bright Homes Security SHG vs National Social Security Fund Board of Trustees and Isack Tuwei Kosgei. 5. Upon consolidation, the intended 5th Defendant/Applicant be granted leave to file its statement of Defence/Replies. 6. Costs of this application be provided for. It is based on the grounds that the National Social Security Fund Board of Trustees is a body corporate established under Section 5 of the National Social Security Fund Act. That the National Social Security Fund Board of Trustees is the registered proprietor of all that property known as LR No. 20355 located at Mavoko, Machakos County having acquired the same on 7th February 1995 and a certificate of title issued in its name by the Registrar of titles. By the Plaint dated 19th February 2025 the Plaintiffs herein commenced the present proceedings against the National Social Security Fund Employees (the Defendants herein) in their individual capacity seeking grant of the following orders over the Fund’s parcel known as Mavoko LR. No. 20355 located in Mavoko. The Plaintiffs/Respondents allege that they are the registered proprietors of all that land known as Mavoko LR. No. 20355 having acquired the same through a letter of allotment dated 24th February 1998. The National Social Security Fund Board of Trustees having acquired the suit property in 1995, the suit property was not available for allocation to the Plaintiffs in 1998. The letter of allotment allegedly issued to the Plaintiff is thus invalid. The National Social Security Fund Board of Trustees has entered into contracts for construction of a perimeter wall around the suit parcel and stands exposed to legal claims by 3rd parties if any adverse orders are issued. That the National Security Fund Board of Trustees is a body corporate capable of suing and being sued. The Defendants herein are employees of the National Social Security Fund and are thus illegally sued in their personal capacity. There is need for an explanation as to how three certificates of title were issued to three different groups at different times without the consent of the National Social Security Fund Board of Trustees. It is necessary for a just determination of all issues in dispute that National Social Security Fund Board of Trustees and the Chief Land Registrar, Nairobi be enjoined as a Defendants. That the suit property is currently the same subject matter in Machakos ELCLC E017 of 2025 Syokimau Bright Homes Security SHG vs National Social Security Fund Board of Trustees and Isack Tuwei Kosgei. By the Plaint dated 19th February 2025 Syokimau Bright Homes Security SHG filed a suit seeking the following inter alia an order of cancellation of title deed if any for the parcel of land known as LR. NO.20355, Mavoko registered in the name of the 2nd Defendant. An order of declaration that the members of Syokimau Bright Homes Security Self Help Group have acquired prescriptive rights of ownership through adverse possession of the parcel of land known as LR NO. 20355, Mavoko having remained uninterrupted in the parcel for a period exceeding 12 years. I have perused the court record and find that the Plaintiff Respondents filed an application on the 19th June 2023 but failed to prosecute the same hence the court will proceed to determine the instant application. This court has considered the application. The legal position on joinder of parties is Order 1 Rule 10 (2) of the Civil Procedure Rules 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.” The principles to be considered for joinder of a party were well enumerated in the decision in **Meme vs Republic (2004)1 124,** which principles are; “a) joinder of a person because his presence will result in the complete settlement of all questions involved in the proceedings, b) joinder to provide a protection of a party who would otherwise be adversely affected in law, c) joinder to prevent a likely course of proliferated litigation.” The law clearly stipulates that joinder can be made of any party as Plaintiff or Defendant or as one whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. The considerations by the court before allowing a person to be joined in the suit have been stretched to include those who would be adversely affected in law and also to prevent proliferated litigation. From the pleadings before the court, the intended 5th Defendant/ The National Social Security Fund Board of Trustees states that they are the registered proprietors of all that property known as LR No. 20355 located at Mavoko, Machakos County having acquired the same on 7th February 1995 and a certificate of title issued in its name by the Registrar of titles. I find that the Applicant produced documentary evidence KN1 a certificate of title claiming ownership of the suit land. In the circumstances therefore, the said intended 5th Defendant is proper party to be joined in this suit as a Defendant. This is in order for them to defend their interest in the property. It is therefore in their best interest to be joined in the suit. I also find that the National Security Fund Board of Trustees is a body corporate capable of suing and being sued. That the Defendants herein are employees of the National Social Security Fund and are thus wrongly sued in their personal capacity. The jurisdiction to consolidate suits is provided by order 11 Rule 3 of the Civil Procedure Rules*.* In the case of Prem Lala Nahata & Anor vs Chandi Prasad Sikaria (2007) 2 Supreme Court Cases 551, the India Supreme Court held that; *“It cannot be disputed that the Court has power to consolidate suits in appropriate cases…. The main purposes of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the court and it appears to the court that some common questions of law or fact arises in both or all the suits or that the rights or relief claimed in the suits are in respect or arise out of the same transactions or series of transactions; or that for some other reasons it is desirable to make an order consolidating the suit.”* In the case of Law Society of Kenya vs Center for Human Rights & Democracy & 12 Others (2014) eKLR, the Supreme Court of Kenya held that; *“The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never intended to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party who opposes it.”* In Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa (2000) eKLR, the court held that; *“The situations in which consolidation can be ordered include where there are two or more suits for matters pending in the same court where: -* *a. Some common questions of law or fact arises in both or all of them.* *b. The rights or reliefs claimed in them are in respect of the same transactions;* *c. For some other reasons, it is desirable to make an order for consolidating them.”* The Court has a wide discretion in ordering consolidation. Consolidation will be ordered if there is a common question of law or fact in the suits, the reliefs or rights sought arise from the same or a series of transactions, or for any other reason such as for convenience, avoiding multiplicity of suits, expedition and in order to meet the overriding objective set out in the Civil Procedure Act, Cap 21 Laws of Kenya. I have perused the pleadings in all these cases and find that the same question of law and/or fact arises in the suit herein and Machakos ELCLC E017 of 2025 Syokimau Bright Homes Security SHG vs National Social Security Fund Board of Trustees and Isack Tuwei Kosgei. That the rights and/or reliefs claimed in Machakos ELCLC E017 of 2025 Syokimau Bright Homes Security SHG vs National Social Security Fund Board of Trustees and Isack Tuwei Kosgei and the suit herein are similar. I find that the subject matter is the same and the parties are similar. Lack of consolidation may pose a risk the court in rendering conflicting decisions on the central issue in all the cases being the ownership of the Suit Property. I find that this application is merited and grant the same. Costs to be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**