https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3004

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT VOI** **ELCL PETITION NO. E001 OF 2023** **GADIEL MNYAMBO MWAISAMA & 158 OTHERS** ........ **PETITIONERS** **VERSUS** **NDARA B COMMUNITY** ........................................ **1ST RESPONDENT** **TRUSTEES OF DIASPORA UNIVERSITY TOWN** ....... **2ND RESPONDENT** **UNIVERSAL RESOURCES INTERNATIONAL** **LIMITED** ………………………………………………. **3RD RESPONDENT** **COUNTY GOVERNMENT OF** **TAITA TAVETA** ……………………….... **PROPOSED 4TH RESPONDENT** **RULING** ***(In respect to the application dated 4th May 2026)*** **1.** Before this Court is a Notice of Motion application dated 4th May 2026, filed by the Petitioners/Applicants brought pursuant to **Order 1 Rules 1, 3 and 10(2) of the Civil Procedure Rules, Section 3A and 63(e) of the Civil Procedure Act Cap 21**, and other enabling provisions of the Laws of Kenya. The application seeks the following substantive orders: ***(a) spent…*** ***(b) That pending hearing and determination of this Application or until further orders, this Honourable Court be pleased to stay, suspend and/or arrest the delivery of its judgment scheduled for 9th May 2026;*** ***(c) That this Honourable Court be pleased to grant leave to the Petitioners/Applicants to enjoin the Proposed 4th Respondent, the County Government of Taita Taveta, as a Respondent and/or party to the suit herein and to proceed with the suit pending judgment of this Petition;*** ***(d) That an order issue compelling the Proposed 4th Respondent to provide records of the Voi Municipality Dumping & Waste Management site located at Ndara B Community land; and*** ***(e) That costs of this Application be provided for.*** **2.** The application is supported by the sworn affidavit of **Gadiel Mnyambo Mwaisama** dated **4th May 2026,** a Further Affidavit sworn on 14th May 2026, certificates of photographic evidence sworn by **Mwazighe Micar** and **Jackson Lundi** respectively, and written submissions filed by **Mwazighe & Company Advocates** dated **14th May 2026.** **3.** The 1st and 2nd Respondents opposed the application through a Replying Affidavit sworn on **5th May 2026** by **Ronald Mwang'ombe,** a Trustee of the 2nd Respondent and member of the 1st Respondent. The 2nd Respondent's counsel, **Mr. Juma**, did not file written submissions but relied on the replying affidavit. The 1st and 3rd Respondents' counsel, **Mr. Kago,** opposed the application through oral submissions. No replying affidavit was filed on behalf of the Proposed 4th Respondent. **4.** This Petition, filed in 2023, concerns a dispute over approximately 1,306.46 hectares (3,228 acres) of land in the Sagalla/Ndara area within Taita Taveta County. The Petitioners, comprising 159 individuals, assert rights over land that is registered in the names of various parties, including Ndara B Community (455.16 ha), the Trustees of Diaspora University Town (586.86 ha), and Universal Resources International Limited, among others. The substantive issues in the Petition relate primarily to the determination of ownership, historical injustice, and the proprietary rights of the Petitioners over the suit property. **5.** The matter has had a protracted history. Submissions were to be filed within 21 days from 14th February 2026, per directions of this Court. Judgment was thereafter scheduled and then re-scheduled, ultimately being set for 9th May 2026 and subsequently 6th May 2026 at different points in the chronology of this file. **6.** The immediate catalyst for this application is a series of events between April and May 2026 involving the County Government of Taita Taveta (the Proposed 4th Respondent). The Petitioners depone that officials of the Proposed 4th Respondent visited the suit property on **8th and 9th April 2026** accompanied by land surveyors, and again on **14th and 15th April 2026** with the intention of placing beacons on a portion of the suit land, which it claimed had been donated to Voi Municipality as a Dumping & Waste Management Site by the Ndara B Community before devolution. On **17th April 2026,** the Proposed 4th Respondent wrote to the Petitioners inviting them to a meeting, which was held on 20th April 2026. Photographic evidence **(exhibits GMM-1 and GMM-2)** and a social media post from the Kaloleni Ward Administrator corroborate these visits. The Petitioners further complain of continuous interference on the suit property through camels associated with parties to the suit. **Issues for determination** **7.** Having considered the pleadings, affidavits, written submissions, and oral arguments placed before this Court, the following issues crystallize for determination: **i. Whether this Court should stay, suspend or arrest the delivery of its judgment pending hearing and determination of this application;** **ii. Whether the Petitioners/Applicants should be granted leave to join the County Government of Taita Taveta as the 4th Respondent in these proceedings;** **iii. Who should bear the costs of this application.** **Issue 1: Whether this court should stay, suspend or arrest delivery of judgment** **8.** The Petitioners invoke this Court's inherent jurisdiction under Section 3A of the Civil Procedure Act and the overriding objective provisions under Sections 1A and 1B of the same Act. They rely on the principle articulated in **Wachira Karani v Bildad Wachira [2016] eKLR** that the fundamental duty of the court is to do justice between the parties, and that courts are not powerless when the ends of justice and equity so demand. They further rely on **Stephen Boro Gitiha v Family Finance Building Society & 3 Others [Court of Appeal, CA No. 263/2009]** for the proposition that the overriding objective overshadows technicalities and rules that conflict with it. **9.** The Respondents, on the other hand, contend that the application is misconceived, premature, and an abuse of the court process. They aver that the Petitioners failed to comply with the Court's directions to file final submissions within 21 days from 14th February 2026, and that the present application is a deliberate attempt to derail the expeditious determination of the Petition. They urge the Court to dismiss the application and proceed to deliver judgment as scheduled. **10.** The power of this Court to stay or reschedule delivery of judgment is a discretionary one and must be exercised judicially, having regard to the overall interests of justice and the principle of finality in litigation. The Supreme Court of Kenya has consistently held that the right of access to justice is a foundational constitutional value. **Article 50(1) of the Constitution of Kenya 2010** guarantees every person the right to have any dispute resolved in a fair and public hearing before a court or independent and impartial tribunal. Similarly, **Article 159(2)(d)** enjoins courts to administer justice without undue regard to procedural technicalities, and **Article 159(2)(b)** directs that justice shall not be delayed. **11.** The tension between finality of litigation and substantive justice is one that courts must carefully navigate. In **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2013] eKLR**, the Supreme Court observed that the interest of justice is a paramount consideration that may, in exceptional circumstances, justify intervention even at a late stage of proceedings. Equally, in **Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2014] 2 KLR 1**, the Court of Appeal reaffirmed that courts must balance the imperative of finality against the need to ensure that a judgment does not occasion injustice. **12.** However, it is a settled principle that courts have an overriding duty to ensure the expeditious disposal of disputes. In **Re Petition No. 5 of 2015 (Raila Odinga v Independent Electoral and Boundaries Commission) [2016] eKLR,** the Supreme Court underscored the importance of finality, holding that litigation must come to an end. The Court of Appeal similarly observed in **Suleiman Said Shahbal v Independent Electoral and Boundaries Commission & 3 Others [2014] eKLR** that delays occasioned by interlocutory applications at a late stage of proceedings are inimical to justice. **13.** This Court takes note of the sequence of events. Judgment had been scheduled on more than one occasion. The Petitioners had failed, without adequate explanation, to comply with the Court's direction to file final submissions within 21 days from 14th February 2026. The filing of the present application on 4th May 2026, days before the scheduled judgment date, cannot be characterised as entirely coincidental or made without an awareness of the impending judgment. The Respondents' concerns about delay tactics are not wholly without merit. **14.** That said, this Court cannot be blind to a substantive development that has emerged in the course of these proceedings namely, the active and documented intervention by the County Government of Taita Taveta on the suit property, barely weeks before judgment. The affidavit evidence, corroborated by photographic exhibits and a publicly available social media post from the Ward Administrator's office acknowledging a land mapping and handing over exercise for fencing of the Voi Municipality Dumping & Waste Management Site on the suit land, raises a legitimate concern about an active third-party claim on the very property at the heart of this Petition. That a public body appears to have acquired or claims a legal interest in a portion of the suit land through a donation from the 1st Respondent and that this claim surfaces on the eve of judgment is a matter that bears directly on the completeness and enforceability of any order this Court may make. **15.** The question is not whether the Petitioners deserve a stay merely because they have applied for one at a late stage, but whether, in the particular circumstances of this case, the delivery of judgment without considering the County Government's position would risk producing an order that cannot be fully and effectively executed, or one that spawns further litigation between parties whose interests have not been heard. **16.** In **Wachira Karani v Bildad Wachira (supra),** the court aptly stated that parties should be allowed a proper opportunity to put their cases on the merits. The Court of Appeal in **David Karanja Githegi & Another v James Mburu Ngacha & Another [2015] eKLR** held that the power to vacate a judgment delivery date is discretionary, to be exercised where it is just and necessary to do so to prevent injustice. The Court further cited the overriding objective as justifying departure from procedural strictness where the ends of justice are imperiled. **17.** This Court is therefore satisfied that, in the unique circumstances of this case, it would not be in the interest of justice to proceed to deliver a final judgment on the merits of the ownership dispute without first addressing the question of whether the County Government of Taita Taveta ought to be joined to these proceedings, particularly given the prima facie evidence of its active involvement in and claim over a portion of the suit property. To deliver judgment that ignores this claim would risk producing a hollow or unenforceable order. **18.** Accordingly, this Court grants the prayer for a stay or deferral of the delivery of judgment pending the hearing and determination of the joinder application. **Issue 2: Whether leave should be granted to join the county government of Taita Taveta as the 4th respondent** **19.** This is the most consequential issue in this application. The legal framework governing joinder of parties in Kenya is well established. **Order 1 Rule 10(2) of the Civil Procedure Rules, 2010** provides: ***"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."*** **20.** Order 1 Rule 3 further provides that all persons may be joined as defendants against whom any right to relief arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally, or in the alternative, where common questions of law or fact would arise. **21.** The principles governing joinder have been authoritatively restated by various courts. In **Mwilu v Judicial Service Commission & 2 Others; Director of Public Prosecutions & Another (Intended Respondent) [2020] KEHC 2745 (KLR),** the court distilled the guiding principles as follows: **1. The party must be a necessary party;** **2. The party must be a proper party;** **3. In the case of a defendant, there must be relief flowing from that defendant to the plaintiff;** **4. The ultimate order or decree cannot be enforced without the party's presence; and** **5. The party's presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit.** **22.** These principles were affirmed in **Stratogen Limited v County Government of Kisii & Another [2025] KEHC 1633 (KLR**), where the High Court at Kisii applied Order 1 Rule 10(2) and the *Mwilu* principles to determine whether joinder was appropriate. **23.** The Court of Appeal in **Civicon Limited v Kivuwatt Limited & 2 Others [2015] eKLR** further emphasised that: ***"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…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."*** **24.** Applying these principles to the facts before this Court: **Is the County Government of Taita Taveta a necessary party?** The evidence before this Court demonstrates that the Proposed 4th Respondent has actively asserted a claim over a portion of the suit property specifically, the Voi Municipality Dumping & Waste Management Site, which it avers was donated to it by the Ndara B Community (the 1st Respondent) before devolution. This is corroborated by a letter from the CCO Environment, Climate Change and Natural Resources dated 17th April 2026, physical visits to the suit property on 8th, 9th, 14th and 15th April 2026, the placing of beacons, and the publicly acknowledged mapping and handing over exercise. These are not mere assertions they are documented acts of possession and administrative claim over the suit land. A judgment on ownership of the suit property that does not bind the County Government would be incomplete and potentially unenforceable as against a public entity actively occupying a portion of the land in question. **Is the County Government a proper party?** Yes. The Petition concerns the ownership and use of land that the County Government claims was donated to it for public purposes. Its presence in the proceedings would enable the Court to make determinations that are complete, binding and executable as against all persons with an identifiable interest in the suit property. **Is there potential relief flowing from or against the Proposed 4th Respondent?** Yes. The Petitioners seek, among other reliefs, to compel the County Government to produce records relating to the dumpsite, and the Court may need to make orders concerning the occupation and use of that specific portion of land as part of any comprehensive resolution of the ownership dispute. **Can the ultimate order be enforced without the County Government's presence?** This Court answers this in the negative. Any order as to ownership of the suit property particularly in respect of the portion allegedly donated to the Municipality would be of limited effect if not binding on the County Government, which has already taken physical steps to assert its claim on the land. **25.** The 1st and 3rd Respondents' counsel submitted that the County Government's interest in the land stems from the Ndara B Community, and that the fate of that interest will be determined by the judgment. This argument, while superficially attractive, misses a critical point. The County Government is a legal entity distinct from the Ndara B Community. It has statutory and constitutional duties regarding public land and public utilities. Its interest in the property is not merely derivative of the 1st Respondent's claim it is an independent, administratively documented and physically asserted claim. To bind the County Government to a judgment rendered in proceedings to which it was not a party would offend the foundational principle of natural justice expressed in the Latin maxim *audi alteram partem* hear the other side. **26.** In **Mbaki & Others v Macharia & Another (2005) 2 EA 206**, the court held that the right to be heard is a valued right, and it would offend all notions of justice if the rights of a party were to be prejudiced or affected without that party being afforded an opportunity to be heard. The Supreme Court of Kenya, in **Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR,** affirmed that the doctrine of fair hearing is not merely procedural but is a foundational constitutional guarantee. A judgment that directly affects the proprietary interests of the County Government, rendered without affording it an opportunity to be heard, would be vulnerable to challenge and potentially unenforceable. **27.** The Respondents invoke the principle of finality of litigation and argue that the application is merely a delay tactic. This Court acknowledges the importance of finality. As the Supreme Court observed in **Kenya National Commission on Human Rights v Attorney General & Others [2020] eKLR**, litigation must ultimately come to a conclusion for the benefit of all parties. However, finality cannot be pursued at the cost of substantive justice. As observed in **Runya & 3 Others v Mugo & 6 Others [2024] KEELC 6225 (KLR),** the principle of finality does not operate as an absolute bar to the joinder of a party whose rights are directly affected by pending proceedings, particularly where joinder is sought before formal judgment is entered and perfected. **28.** This Court is also mindful that the application has been brought at a late stage. The County Government's interventions on the suit property commenced in April 2026, and the application was filed on 4th May 2026. While the Petitioners could have been more vigilant, the proximity between the events on the ground and the filing of the application is explicable. The Court of Appeal's observation in **Central Kenya Ltd v Trust Bank Ltd [2000] 2 EA 365** is instructive that amendments and joinder should be freely allowed at any stage of proceedings, provided they do not result in prejudice or injustice to the other party that cannot be compensated in costs. **29.** What prejudice, if any, would the Respondents suffer from the joinder? The 2nd Respondent, through its Replying Affidavit, asserts that the application is premature and an abuse of process. However, the Court finds that the prejudice to the Respondents from joinder essentially a further delay in the delivery of judgment is one that can be addressed through a firm timetable and an appropriate order as to costs. By contrast, the prejudice to the Petitioners and to the integrity of the Court's eventual judgment from proceeding without the County Government is structural and potentially irremediable. **30.** Finally, on the question of whether joinder may be ordered at this late stage after submissions have closed and judgment has been set this Court is guided by Order 1 Rule 10(2), which expressly provides that the Court may make a joinder order *"****at any stage of the proceedings."*** In **Runya v Mugo (supra),** the Environment and Land Court at Mombasa allowed joinder of interested parties even after judgment had been delivered, setting aside the judgment to accommodate their participation. In **JMK v MWM & Another [2015] eKLR (Civil Appeal No. 15 of 2015 Mombasa), the Court of Appeal,** while noting that Order 1 Rule 10(2) generally contemplates pending proceedings, recognised exceptions where joinder is necessary to do complete justice. The present case falls squarely within the category where joinder before judgment not after is both necessary and just. **31.** This Court accordingly grants leave to the Petitioners to join the County Government of Taita Taveta as the 4th Respondent in these proceedings. The County Government shall be given a defined and strictly limited opportunity to file its response and participate in the proceedings, after which this Court shall deliver judgment without further delay. **Issue 3: Costs** **35.** The question of costs is at the discretion of the Court. While this application has partially succeeded. The application was filed at a late stage and occasioned a further adjournment of these long-running proceedings. In the circumstances, this Court directs that the Petitioners shall pay each of the 1st, 2nd and 3rd Respondents thrown away costs of Ksh 20,000/- **Final orders** **37.** In conclusion, the application dated **4th May 2026** is hereby allowed in the following terms; 1. **The delivery of judgment in this Petition is hereby stayed pending further directions from this court.** 2. **The County Government of Taita Taveta is hereby joined to these proceedings as the 4th Respondent.** 3. **The Petitioners/Applicants shall physically serve the County Government of Taita Taveta with all pleadings, affidavits, and documents filed in this matter by 4pm today.** 4. **The County Government of Taita Taveta shall file and serve its Response, if any, within 14 days of service upon it.** 5. **No further applications shall be entertained in this matter after the expiry of the timelines set out above, save in exceptional circumstances to be assessed by this Court on a case by case basis.** 6. **The Petitioners shall pay thrown away costs of Ksh 20,000/= to the 1st, 2nd and 3rd Respondents within 14 days from today.** **DATED, SIGNED AND DELIVERED VIRTUALLY/OPEN COURT AT VOI THIS DAY OF 20TH DAY OF MAY 2026.** **E.K. WABWOTO** **JUDGE** **In the presence of:** **Mr. Mwazighe for the Petitioners/Applicants.** **Mr. Juma for the 2nd Respondent.** **Mr. Kago for the 1st and 3rd Respondents.** **Court Assistants: Mary Ngoira and David Ngoosa.**