https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4911

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC SUIT NO. 101 OF 2022** **MAYMUNA SWALEH SAID………………………………..PLAINTIFF** **VERSUS** 1. **WARSAME BISHAR ISSACK** 2. **NOOR SALIM SAID** 3. **GAMAL ASHUR AWADH** 4. **LAND REGISTRAR, MOMBASA …………………DEFENDANTS** **RULING** 1. Before the Court for determination are two applications. 2. By the two Notice of Motions dated 11th July 2025 and 17th September 2025 the Applicants pray for orders: **1.** **2. That this court be pleased to grant an order enjoining the Applicants as the 2nd to 23rd Plaintiffs;** **3. Upon such joinder, the Plaint and all pleadings herein be amended accordingly to reflect the joinder of the Applicants and the Plaintiffs’ case be re-opened; and** **4. That costs of this application be in the cause.** 1. The application which is supported by an Affidavit sworn by Abdulghaniy Ahmed Said (the 1st Applicant) is premised on the grounds inter alia that: 2. **The Applicants have a beneficial interest in the suit property which is the subject of these proceedings;** 3. **The 2nd Defendant unlawfully and fraudulently sold the suit property to the detriment of the Applicants;** 4. **The agreement of sale executed by the 2nd Defendant is null and void, and incapable of conferring title or proprietary rights due to the underlying fraud and illegality;** 5. **The suit property is a family property and the Applicants never received any consideration or proceeds from the alleged sale. The Applicants are seeking their rightful share of the said property;** 6. **The Applicants support the Plaintiff’s case and their joinder is necessary to assist the Honourable Court effectually and completely adjudicate upon and settle all questions involved in the suit;** 7. **Failure to join the Applicants will result in irreparable prejudice, as they stand to lose property rights which cannot be adequately compensated in damages;** 8. **The joinder of the Applicants will prevent a multiplicity of suits and the embarrassment of parallel litigation, as any separate proceedings would raise common issues of law and fact.** 9. **The application is made in good faith and will not occasion any prejudice to the Defendants, but will assist in the expeditious and fair determination of the real issues in controversy; and** 10. **That it is in the interest of justice, equity and fairness that the application be allowed.** 11. Warsame Bashir Issack (the 1st Defendant) is opposed to the Motion dated 17th September 2025. In his Replying Affidavit sworn on 3rd October 2025, the 1st Defendant avers that the application lacks merit, is frivolous, vexatious and an abuse of the Court process. The 1st Defendant asserts that the application is meant to delay justice as the same seeks to join 23 new parties when the Plaintiff has already testified and closed her case. The joinder would require re-opening of pleadings, recalling witnesses and effectively restarting the trial which will occasion prejudice to the Defendants who have been in litigation since the year 2022. 12. The 1st Defendant further avers that he is a bona fide purchaser for value having lawfully acquired the suit property in the year 2021. It is his case that he has invested heavily on the property but has not enjoyed any returns owing to the injunction obtained by the Plaintiff. 13. The 1st Defendant further avers that the Applicants have been fully aware of these proceedings and even participated in the Court annexed mediation proceedings that were directed by this Court and the application is therefore a belated attempt to re-enter the litigation after the Plaintiff has closed her case in order to cure the evidential gaps exposed in the Plaintiff’s case. 14. The 1st Defendant further avers that while the Applicants have raised grave allegations of fraud, forgery and lack of consideration no documentary evidence has been tendered in support of the claims. It is therefore the 1st Defendant’s case that the present application is speculative and unsupported, and cannot therefore be the basis of drastic orders of joinder and re-opening of pleadings. 15. Noor Salim Said and Gamal Ashur Awadh (the 2nd and 3rd Defendants respectively) are equally opposed to the two applications. In their Replying Affidavit jointly sworn on 6th October 2025, the 2nd and 3rd Respondents aver that the Motion dated 17th September 2025 has been filed contrary to the Court’s directions which had required the Applicants to amend their motion dated 11th July 2025. 16. The 2nd and 3rd Defendants aver that even if the Applicants are beneficiaries of the suit property, they lack the legal capacity to be joined in this suit for want of letters of administration and as such their applications are premature and improperly before the Court. 17. The Defendants assert that the Plaintiff moved this Court in her capacity as the Administrator of the Estate of her late father Swaleh Salim and as a result the other beneficiaries of the estate lack the locus to be joined in these proceedings. 18. The Defendants aver further that the proposed joinder would no serve the interest of justice as stated but would instead cause undue delay, increase costs and prejudice the existing parties. It is their case that the Applicants were aware of the suit and that some of them have been attending these proceedings including the Court – annexed mediation that was conducted herein and their application is therefore an after-though aimed at “patching up” matters that were omitted during the Plaintiff’s case. 19. I have carefully perused and considered the two application as well as the respective responses thereto. I have similarly perused and considered the submissions and authorities placed before this Court by the Learned Advocates representing the parties. 20. Before the Court for determination are essentially two applications in one. The 23 Applicants herein first filed the Notice of Motion herein dated 11th July 2025. When the matter came before the Court, it was noted that the said application was expressed to have been brought on behalf of the “1st Defendant/Applicant.” Given that the 1st Defendant was one of the parties opposed to that application, the Court asked the Applicants to amend the said Motion in order to correct the said anomaly. 21. Instead of amending the application, the Applicants instead filed a brand new Notice of Motion dated 17th September 2025 wherein they sought the very same orders as in the previous application. According to the 2nd and 3rd Defendants, the Applicants now have two parallel applications for joinder and the second application is therefore irregular and should be expunged from the record. 22. I was not however persuaded that there was any sufficient ground to expunge the Motion dated 17th September 2025. It was evident to me that the second application was meant to correct the anomaly in the Motion dated 11th July 2025 and that the same had not caused any prejudice to the parties herein which could not be remedied by an award of costs. I would therefore consider the second application to have been an amendment of the first one. 23. By the application before the Court the Applicants, urge the Court to be pleased to grant an order enjoining themselves as the 2nd to 23rd Plaintiffs herein and that, upon doing so, the Plaint and all pleadings filed herein be amended accordingly to reflect that position and the Plaintiff’s case be re-opened. The 1st, 2nd and 3rd Defendants are jointly and severally opposed to those prayers. 24. In regard to the issue of joinder of parties 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 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. Considering those provisions in ***Civicon Limited –vs- Kivuwatt Limited & 2 Others (2015) eKLR;*** the Court of Appeal held as follows: **“From the forgoing the power of the court to add a party to a suit is wide and discretionary, the overriding consideration being whether he has interest in the suit. The question is whether the right of a person may be affected if he is not added as a party. Generally, in exercising this jurisdiction the court will consider whether a party ought to have been joined as plaintiff or defendant, and is not so joined, or without his presence, the question in the suit cannot be completely and effectively decided.....** **Again the power given under the Rules is discretionary which discretion must of necessity 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. In the same vein, a party seeking joinder who fails to establish any right over or interest in the subject matter cannot be enjoined.”** 1. In the matter before the Court, the Applicants aver that the suit property belongs to their family and that they have a beneficial interest over the same. They accuse the 2nd Defendant of unlawfully and fraudulently selling the same to their detriment. The Applicants urge the Court to enjoin them in the matter to enable them support the Plaintiff’s case and that such joinder is necessary to assist the Court to effectually and completely adjudicate and settle all issues relating to the dispute. 2. In support of their case, the Applicants aver at paragraphs 1 to 4 of the Supporting Affidavit sworn by the 1st Applicant that they are beneficiaries of the suit property which forms part of the estate of the Plaintiff’s late father. It is their case that the 2nd Defendant had fraudulently disposed of the suit property through a forged agreement allegedly signed by the Plaintiff’s father who passed away on 4th December 2001. They assert that they were neither consulted nor involved in the sale transaction and that they are intent on claiming their rightful share of the suit property. 3. From the material placed before the Court, it was apparent that the Plaintiff has instituted this suit in her capacity as the Administrator of the Estate of Saleh Said alias Swaleh Salim Said having been issued with a Grant of Letters of Administration in Mombasa Kadhi’s Succession Cause No. E180 of 2022. 4. That being the case, it was clear to me that the estate of the deceased was already adequately represented in these proceedings. Unlike the Plaintiff, the Applicants have not exhibited any Grant of Letters of Administration that has clothed them with the requisite capacity to assert rights on behalf of the estate. Indeed, the Applicants have not produced any documentary evidence establishing that they are recognized beneficiaries with an enforceable claim. 5. As the Court observed in ***Hawo Shanko –vs- Mohamed Uta Shanko (2018) eKLR:*** **“The general consensus is that a party lacks the locus standi to file a suit before obtaining a grant limited for that purpose. This legal position is quite reasonable in that if the Plaintiff or applicant has not been formally authorized by the Court by way of a grant limited for that purpose, then it will be difficult to control the flow of Court cases by those entitled to benefit from the estate. If each beneficiary is allowed to file a suit touching on a deceased’s estate without first obtaining a limited grant, then several suits will be filed by the beneficiaries. It is the limited grant which gives the plaintiff the locus to stand before the Court and argue the case.”** 1. In the matter herein, the Appellants have not shown that they possess any independent or distinct cause of action separate from that already advanced by the Plaintiff. Their intended joinder does not introduce any new issue necessary for determination but merely duplicates and potentially complicates the existing claim. 2. From my perusal of the record, it is clear that the Plaintiff has already testified and closed her case and that the matter is presently at the defence hearing stage. The Applicants have not denied that they have been aware of these proceedings and that some of them including the deponent of the Supporting Affidavit to this application participated in the matter when it was referred to Court – annexed mediation. They have not indicated why they did not apply to join the proceedings earlier and why they now seek to have the Plaintiff’s case re-opened. To allow such an application would be to sanction a process whereby a party, having tested its case and noted certain gaps therein, is permitted to re-open and reconstruct it through the pleadings and testimonies of additional parties. That would not only prejudice the Defendants but would also undermine the integrity of the judicial process. 3. It follows that I did not find any merit in the Motion dated 11th July 2025 as amended on 17th September 2025. I dismiss the same with costs. **Ruling dated, signed and delivered in open court and virtually at Mombasa this 30th day of July, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Mangale holding brief for Kalimo Advocate for the Applicants c) Mr. Mohamed Timamy Advocate for the 1st Defendants d) Mr. Shee Ali holding brief for Hamza for the 2nd and 3rd Defendants e) No appearance for the Plaintiffs