https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4566

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELCL APPEAL E192 OF 2025** **KENYA NATIONAL HIGHWAYS AUTHORITY……………. APPELLANT/APPLICANT** **-VERSUS-** **ABDUL WAHEED SHEIKH AND ABDUL HAMEED SHEIKH** **(As Trustees of Sheikh Fazal Ilahi Noordin Charitable Trust) …..…... 1ST RESPONDENT MINISTRY OF LANDS, PUBLIC WORKS,** **HOUSING AND URBAN DEVELOPMENT ………………………… 2ND RESPONDENT NATIONAL LAND COMMISSION ……………………………..……3RD RESPONDENT (Being an Appeal from the decision of the Land Acquisition Tribunal at NAIROBI (Dr. Orina, Mr. Supeyo & Ms. Okal) dated and delivered on 9th September, 2025 in Case No. TRLAP E054 of 2024)** **AND** 1. **DAVID KAHARA CHEGE** 2. **JAMES NGUGI IRWA GATHECA** 3. **MICHAEL GITHINJI KIMANI** 4. **JOSHUA KAHURIA KINGECHE** 5. **ANNE WAIRIMU KAKUI** 6. **RICHARD KAMAU** 7. **JAMES MWAURA (Suing on their own behalf and on behalf of UMOJA CITY SELF HELP GROUP (KWA NJOROGE VILLAGE RESIDENTS)/ PLAINTIFFS IN ELC NO. 102 OF 2008, NAIROBI] .......................................... INTERESTED PARTIES/APPLICANTS** **RULING** **Introduction** 1. The application before this court is the intended interested party’s application for joinder dated 20th February 2026 seeking the following orders; 2. **THAT** the Applicants be granted leave to be enjoined in these proceedings being long standing squatters living in Nairobi /Block 37/63 formerly LR No 209/163 whose rights and interests will be directly affected with the outcome of this suit, following the judgement by the land acquisition tribunal. 3. That the Applicants are plaintiffs in ELC 102 of 2008, the petitioners interested parties and the defendants also part of the suit hence need to be enjoined in these proceedings. 4. That the Applicants be granted leave to file pleadings, affidavits and any other documents necessary to protect their interests. 5. The intended interested party’s application was premised on grounds as in the supporting affidavit of Richard Kamau Kahara. He depone that the intended interested parties were squatters who had been living in the suit property since the colonial area and had made their livelihood on the property having constructed on the same. That there was ELC 102 of 2008 where the Applicants had litigated over the rights in the same issues and failing to enjoin them in this suit would lead to multiple inconsistent judgements if they are not allowed to adjudicate on their rights. 1. The application was opposed by the 1st Respondent who filed a replying affidavit sworn by Abdul Waheed Sheikh. He deponed that the application was majorly founded on the claims of the Applicants on the issue of adverse possession in ELC 102 of 20028 which suit had been heard and determined via the judgement of 26th February 2026 and the court had dismissed the Applicant’s claims for any proprietary rights on the suit property, and hence the issue of any rights accruing capable of according them audience in this matter had been dealt with. That further the Applicants had not demonstrated any legal identifiable stakes in the suit property to warrant them to be enjoined and the argument raised of inconsistent judgement if they are not enjoined, is not valid ground enough to warrant for their joinder in these proceedings. Submissions 1. The Applicant filed submissions dated 13th April 2026 and reiterated the content in their supporting affidavit indicating that their exclusion would leave a critical gap in the adjudication of the dispute, as the court would be determining proprietary rights over land without the participation of those in actual possession relying on the court of appeal case in **Mbaki & Others v Macharia & Another [2005] 2 EA 206 (CAK) held:** 2. The 1st Respondent filed rebuttal submissions dated 24th April 2026.Counsel submitted anchoring on the provision of Order 1, Rule 10(2) of the Civil Procedure Rules, 2010 and further relied on the case of **Francis Karioki Muruatetu & Another Vs Republic & 5 Others [2016] eKLR**, that set the threshold required by an Applicant seeking to be enjoined as an interested party, which he argued had not been met by the Applicants more so this being an appeal. Counsel further argued as in the application that the application was moot with the delivery of judgement in ELC 102 of 2008 by Justice Angote which the Applicants relied on as basis for their inclusion, that the issue of whether they had any legal rights had been addressed and this court cannot adjudicate on what has been already established relying on the doctrine of res judicata quoting what was said in **Independent Electoral and Boundaries Commission v. Maina Kiai & 5 Others [2017] Eklr.** The 1st Respondent further submitted that the application was an abuse of the court process, the Applicants having tried to be enjoined severally but failing indicating that at some point litigation has to come to an end and hence ought to be dismissed with costs to the 1st Respondent. **Analysis and determination** 1. I have reviewed the application for joinder, the reply by the 1st Respondent and the submissions of both parties and do hold that the sole issue for determination is whether the application is merited. ***Order 1 Rule 10(2) of the Civil Procedure Rules*** *provides as follows:- “The Court may at any stage of the proceedings, either upon or without Application to 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 Plaintif or Defendant, be struck out, and that the name of any person who ought to be joined whether as Plaintiff or Defendant, or whose presence before Court may be necessary in order to enable Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added”.* The *Black's Law Dictionary* 8th Edition defines a “Necessary Party” as: *“ A party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings.”* 1. The relevant tests for determination whether or not to join a party in proceedings were restated by Nambuye, J (as she then was) in the case of **Kingori versus Chege & 3 Others [2002] 2 KLR 243** where the learned Judge stated that the guiding principles when an intending party is to be joined are as follows: - 2. He must be a necessary party. 3. He must be a proper party. 4. In the case of the defendant there must be a relief flowing from that defendant to the plaintiff. 5. The ultimate order or decree cannot be enforced without his presence in the matter. 6. His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit. The Supreme Court in **Francis K. Muruateru & Ano v Republic & 5Others [2016] eKLR** set out the key elements for consideration in an Application for joinder as an Interested Party as follows: - 1. Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings; 2. Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law. 3. Joinder to prevent a likely course of proliferated litigation. Additionally in [**Civicon Limited Vs Kivuwatt Limited & 2 others**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/588)**[2015] eKLR** it was held that:-*“* *Again the power given under the rules is discretionary which discretion must be exercised judicially. The objective of these rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”* 1. In the case before this Court the Applicants seek to be enjoined as interested parties on the basis that they have legal rights having been squatters on the same by way of adverse possession. It is clear that the basis of their claim is on the doctrine of adverse possession in ELC 102 of 2008. 2. The 1st Respondent have argued that there is no identifiable stake by the Applicant that the court should protect the judgement of the court having been rendered by Justice Angote in ELC 102 OF 2008.I have perused the said judgement attached to the replying affidavit as annexure ‘AWS-3 and do note the court indicated as follows at paragraph 225; *From the plaintiff’s own evidence, it emerges that it was only from 2002 through a series of letters addressed to government authorities that they began actively seeking allocation of the land in their own names. If anything that correspondence marks the earliest of which an intention to assert rights independent of the registered proprietor could be inferred. Between that period to the institution of this suit is less than 12 years necessary to advance a claim for adverse possession. Ultimately and for the foregoing reasons, the plaintiff’s claims for adverse possession cannot be sustained and fails.* 1. There is therefore no grey area left as to the Applicants’ position in relation to the suit property. Going by the above provision of the law and case laws relied on, the issue of a party being a necessary party is at the core of a joinder application, and the Applicants have no demonstrated and identifiable rights that would enable their participation in these proceedings, making them a necessary party. The court can effectually decide on the appeal without their presence. **Final disposition** In view of the foregoing discourse, I make the following orders; 1. The Notice of Motion Application dated 20th February 2026 is without merit and is hereby dismissed. 2. Costs of the Application be borne by the Applicants. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** via e-mail at **NAIROBI** on this **16th** dayof **July 2026.** **MOHAMMED N. KULLOW** **JUDGE**