https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5083

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCC NO. 85 OF 2020** **MAESTRO CREDIT MANAGEMENT LIMITED ...............................1ST PLAINTIFF** **BENEFICIAL ASSURANCE COMPANY LIMITED ..........................2ND PLAINTIFF** **MINI HOLDINGS LIMITED ..........................................................3RD PLAINTIFF** **-VERSUS-** **KAWANGWARE CINEMA LIMITED............................................1ST DEFENDANT** **DAGORETTI SOUTH NATIONAL GOVERNMENT** **CONSTITUENCIES DEVELOPMENT FUND COMMITTEE..........2ND DEFENDANT** **FRANCIS MIGWI,** **MUNENE MEJA WANJIRU,** **FRANCIS WAINAINA KIRUI (Suing as Chairman,** **Secretary and Treasurer of** **DAGORETTI DISTRICT** **LANDS OWNERS WELFARE ASSOCIATION** **(RIRUTA SATELITE BRANCH)..............................3RD DEFENDANT/APPLICANT** **ALEX KINUTHIA,** **JAMES NJOROGE ROBERT GACHECHE** **(Suing as Chairman Secretary and Treasurer** **of NDURARUA JUAKALI ASSOCIATION)..............4TH DEFENDANT/APPLICANT** **THE CHIEF LAND REGISTRAR..................................................5TH DEFENDANT** **AND** **NAIROBI CITY COUNTY GOVERNMENT,** **THROUGH THE COUNTY ATTORNEY....................PROPOSED 6TH DEFENDANT** **PRINCIPAL SECRETARY, STATE** **DEPARTMENT FOR INDUSTRIALIZATION............PROPOSED 7TH DEFENDANT** **RULING** 1. The 3rd and 4th defendants/ applicants filed the notice of motion dated 17th November 2025, expressed to be brought under **Articles 10,40(6),62,67** and **159** of the **Constitution,** **Sections 1A,1B** and **3A** of the **Civil Procedure Act** and **Order 1 Rule 10(2)** of the **Civil Procedure Rules** seeking the following orders:- 2. ***That*** ***Nairobi City County Government, through the County Attorney,*** ***be enjoined as the 6th defendant in this suit****.* 3. ***That the Principal Secretary, State Department for Industrialization be enjoined as the 7th Defendant in this suit****.* 4. ***That pending the hearing and determination of this application, all further proceedings herein, and in particular, the defence hearing scheduled for the 24th of November, 2025 be stayed.*** 5. ***That the proposed 6th defendant be compelled to produce certified land and planning records relating to public land formerly Dagoretti/Riruta S.961 and subdivisions S******.982, 990, 991, 998, 999 and 1000.*** 6. ***That the proposed 7th Defendant do produce all records on Jua Kali/Industrial Workspace development and occupation on the suit land.*** 7. ***That the applicants*** ***be granted leave to*** ***amend the defence and supplementary list of documents.*** 8. ***That costs be provided for.*** 9. The application is premised on the grounds *inter alia* that the suit property is community/public land surrendered for public use in the 1960’s and reserved under PDP/42/11/81/1 for cinema and primary extension. The application is supported by the affidavit of Francis Migwi, chairman of the 3rd defendant/applicant. He deposed that the original suit land parcel known as Dagoretti/Riruta/S.961, was surrendered for public/community purposes in the 1960s, and was allocated/reserved under PDP/42/11/81/1 for cinema and primary school extension. Further, that the suit property was illegally subdivided into parcels S.982, 990, 991, 998, 999 and 1000 which subdivisions he deposed are legally contestable. 10. The 3rd defendant/applicant deposed that the area has been occupied for over 40 years by jua kali artisans, including members of the Ndararua jua kali association, who have operated metal work, fabrication, carpentry, and related industrial/artisan trades on the site. That the state department for industrialization, a predecessor of the proposed intended 7th defendant, constructed work bays and industrial sheds on the suit property, as part of Kenya’s national jua kali/industrial workspace program, demonstrating direct government involvement and public purpose. Further, that if the proposed 6th and 7th intended defendants are not joined to this suit, the court will be deprived of critical evidence relating to public land, planning history, occupation and government-sponsored workspace, which records are within their record. The 3rd defendant/applicant relied on the 3rd and 4th defendants/applicants bundles of documents dated 31st July, 2024 and 30th June, 2025 respectively. 11. In response to the application, Elka K. Motanya, group company secretary and legal affairs manager of the 3rd plaintiff filed the replying affidavit sworn on 15th December, 2025. The 3rd plaintiff/respondent deposed that the instant application lacks merit for the reasons that the application has been filed with unexplained delay, and that it is another attempt to delay the hearing and determination of this suit. Further, that **Order 1 Rule 10(1)** and **(2)** of the **Civil Procedure Rules**, empowers this court to add a party to a suit if the presence of such party is deemed necessary. It was averred that 3rd and 4th defendants/applicants have not demonstrated any legal nexus, cause of action, or statutory duty linking the proposed 6th and 7th defendants to the issues before this court, and their inclusion would neither aid nor be essential to the determination of the real matters in controversy. 12. Further, that the application does not disclose any pleaded claim, relief, or cause of action against the proposed 6th and 7th defendants and that in the absence of any substantive claim against the proposed 6th and 7th defendants, joinder would be speculative and contrary to established principles that a party cannot be joined merely for convenience or to widen the scope of a dispute. The 3rd plaintiff/respondent deposed that the 3rd and 4th defendant’s/applicants prayer to amend its statement of defence is brought in bad faith, as the nature of the proposed amendments are not necessary to determine the real issues in contention between the parties. 13. Further, that allowing the application at this stage of the suit will severely regress the hearing and resolution of this case, which has been pending in court since the year 2001. 14. The 5th defendant/respondent filed grounds of opposition dated 18th March, 2026, opposing the instant application on grounds that firstly, that the 3rd and 4th defendants/applicants have not satisfied the criteria under **Order 1 rule 3** and **Order 1 rule 10** of the **Civil Procedure Rules** on joinder and they relied on the authorities in **Civicon Ltd. vs. Kivuwatt Ltd. and 2 others [2015] eKLR** and **Meme vs Republic (2004) KLR 637.** Secondly, that the application is incompetent for seeking reliefs against non-parties to the suit. On this point they relied on the court of appeal decision in **Pravin Bowry vs. John Ward & another [2015] eKLR.** 15. Further, that the proposed 6th and 7th defendants are not the custodians of the records pertaining to land registration under the **Land Act** and the **Land Registration Act** to warrant joinder in the present proceedings. In addition, the 5th defendant contended that it is upon the 3rd and 4th defendants/plaintiffs in the counter-claim to prove their case without seeking the benefits or assistance of defendants/respondents to assist or prove its case. They cited and relied on the cases of **David Sironga Ole Tukai vs Francis Arap Muge & 2 others [2014] eKLR** and **Stanley Amombo Amuti vs Kenya Anti-Corruption [2019] eKLR.** 16. It is 5th defendant’s further contention that the **Constitution** and statutes provide an elaborate procedure for any party who wishes to obtain documents that are held by the state, which the said defendants/applicants have not followed as they are bound by **Article 35** of the **Constitution** and the **Access to Information Act**, which provides the modalities of obtaining information held by the state or any other person. In conclusion the 3rd and 4th defendants/applicants have not established any lawful cause to warrant grant of the orders sought, adding that they have not met the threshold of stay of proceedings as was established by Ringera, J (as he then was) in the case of **Re Global Tours and Travels Ltd. HC Winding up Cause No. 43 of 2000** and **Kenya Power & Lighting Company Limited vs Esther Wanjiru Wokabi [2014] eKLR**. 17. The application was canvassed through written submissions. Both the 3rd and 4th defendants/applicants and the 3rd plaintiff filed their written submissions dated 7th July, 2026. I have considered the application, the replies and the written submissions filed. The issue for determination is *whether the proposed 6th and 7th defendants are necessary parties to this suit.* 18. The 3rd and 4th defendants/applicants seek joinder of the Nairobi City County government, through the county attorney and the principal secretary, state department for industrialization be joined as the 6th and 7th defendants respectively in this suit. 19. The rules governing joinder of a party are found in **Order 1** of the **Civil Procedure Rules.** **Order 1(10)** provides that:- ***“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.”*** 1. 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 Court of Appeal in **Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR** stated as follows:- ***“In the case of Gurtner vs Circuit (1968) I All ER 328 it was held that, a party may be enjoined if he can demonstrate that any order in the action would directly affect him either legally or financially. (Denning, M.R.) stated thus:*** **“…The bureau clearly had a commercial interest in resisting the declaration; but that is not enough. John Stephenson J accepted the analysis of the rule and the many previous decisions under it contained inthe exhaustive judgment of Devlin, J., in A. Amon vs Raphael Tuck & Sons, Ltd. (1956) 1 All ER 273 and took the view that the court had no jurisdiction to add a party against the will of the plaintiff unless the person seeking to be added was:** **“…at least able to show that some legal right enforceable by him against one of the parties to the action or some legal duty enforceable against him by one of the parties to the action will be affected by the result of the action…”** **…The only reason which makes it necessary to make a person a party to an action is so that he may be bound by the result of the action, and the question to be settled therefore, must be a question in the action which cannot be effectively and completely settled unless he is a party…”** 1. Additionally, the Supreme Court in the case of **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR** broke down the elements necessary for joinder of a party is 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…”*** ***Similarly, in the case of Meme v. Republic,[2004] 1 EA 124, the high court observed that a party could be enjoined in a matter for the reasons that:-*** ***“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;*** ***(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;*** ***(iii) joinder to prevent a likely course of proliferated litigation.”*** ***We ask ourselves the following questions:*** 1. ***what is the intended interested party’s stake and relevance in the proceedings? and*** ***(b) will the intended interested party suffer any prejudice if denied joinder?”*** 1. Thus, the measure of whether a party should be joined to a civil suit is that their presence is necessary to effectually and completely adjudicate upon and settle all questions involved in the suit and will be affected by decision made by the court. The 3rd and 4th defendants/ applicants argue that the suit property, originally known as Dagoretti/Riruta/S.961 was public land, set aside and surrendered for public/community purposes in the 1960s, and was allocated/reserved under PDP/42/11/81/1 for cinema and primary school extension, but was later illegally subdivided and the resultant subdivisions are now privately owned. Their case is that the proposed 6th and 7th defendants are the custodians of the said documents indicating the history of the suit property, thus it is necessary to join them in these proceedings. 2. The **County Governments Act** **Cap 265** at **Section 111(1)** provides that:- ***“For each city and municipality there shall be the following plans—*** 1. ***city or municipal land use plans;*** 2. ***city or municipal building and zoning plans;*** 3. ***city or urban area building and zoning plans;*** 4. ***location of recreational areas and public facilities.”*** 5. **Section 111(6)** goes further to provide that: ***“Each city or municipal land use and building plan shall be reviewed every five years and the revisions approved by the respective county assemblies.”*** 1. It is therefore evident that the county government, Nairobi City County, holds records for all zones and their respective land use in the city, thus can be accountable to answer the questions that the 3rd and 4th defendants have raised in this matter. In **Pravin Bowry v John Ward and Another [2015] eKLR** cited the Ugandan case of **Deported Asians Custodian Board v Jaffer Brothers Ltd [1999] 1 E.A. 55 (SCU)** where the court stated as follows:- ***“For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies (on an application of a defendant) to be*** ***joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” (Emphasis by underline).”*** 1. Therefore, a party may bejoined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it as was held in the authority cited above. In my view, and while relying on the above authority, I find that the proposed 6th and 7th defendants are necessary parties to this suit to enable the court determine all the questions that arise. 2. The other prayer sought in the application is for leave to amend the 3rd and 4th defendants’ defence and supplementary list of documents. **Order 8(3)** of the **Civil Procedure Rules** provides that: ***“Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”*** 1. The learned judges of the Court of Appeal in the case of **Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR** held that:- ***“The policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suffer injustice which cannot properly be compensated for in costs.”*** 1. Thus, amendment of pleadings are usually freely allowed at any stage of the proceedings before judgment, unless the same will prejudice a party in the proceedings, which has not been demonstrated, aside from a slight delay in the proceedings. However, the nature of the proposed amendments is unknown to the court for lack of any draft amended defence annexed to the application. The court cannot make assumptions of the intended amendment. This prayer is therefore declined. To cushion the delay in bringing forth the application, costs will be appropriate in the circumstances. The same will be in favour of the 3rd plaintiff. For the record, the prayer for stay of proceedings has now been overtaken by events. 2. From the above, I find merit in the notice of motion dated 17th November, 2025 in the following terms: 3. ***Nairobi City County Government is hereby joined as the 6th defendant in this suit****.* 4. ***The Principal Secretary, state department for industrialization, is hereby joined as the 7th defendant in this suit****.* 5. ***The 6th defendant is hereby compelled to produce certified land and planning records relating to public land formerly Dagoretti/Riruta S.961 and subdivisions S.982, 990, 991, 998, 999 and 1000.*** 6. ***The 7th defendant is hereby compelled to produce all records on Jua Kali/Industrial Workspace development and occupation on the suit land.*** 7. ***The 3rd plaintiff is entitled to the costs of this application.*** 8. ***Further mention on 3rd November, 2026 for further directions.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 4TH DAY OF AUGUST, 2026.** **HON. MBOGO C.G.** **JUDGE** **04/08/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Mr. Mwangi for the 3rd Plaintiff/Respondent* *Ms. Sirawa for the 2nd Defendant/Respondent* *Ms. Onsembe for the 3rd and 4th Defendants/Applicants* *Ms. Malalwa holding brief for Mr. Achola for the proposed 6th Defendant* *Mr. Allan Kamau for the 5th Defendant/Respondent*