https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3396

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **CONSTITUTIONAL PETITION NO E076 OF 2025** **IN THE MATTER OF ARTICLES 62(1)(Е), 67(2) AND 252 (1)(a) OF THE CONSTITUTION 2010** **AND** **IN THE MATTER OF JOHN FRANCIS ROURKE AND WINIFRED LAURIE ROURKE IN THE MATTER OF L.R 2327/72 (ORIGINAL NO 2327/8/64)** **BETWEEN** **NATIONAL LAND COMMISSION.........................PETITIONER** **VERSUS** **ELIZABETH WAMBUI KAMAU………………………1st APPLICANT** **BRIAN KANG’ETHE NGATUNYI.......................2nd APPLICANT** **RULING** **Background** 1. Before this court for determination are the Applicants’/Intended Respondents’ notices of motion applications both dated the 13th February, 2026. The 1st Applicant’s/Intended Respondent’smotion is brought pursuant to the provisions of **Article 48, 50, 159** of the **Constitution, Sections 1A,1B, 3A, 3B** of the **Civil Procedure Act,** and **Order 51, Rules 1, 2** of the **Civil Procedure Rules**, seeking the following reliefs: that: 2. ***The Honorable court be pleased to grant leave or allow for joinder of the Applicant as a Respondent to the main petition and to file a response to the petition with the petitioner amending the pleadings by incorporating respondent.*** 3. ***The Honorable court be pleased to issue directions over Constitutional Petition E076 OF 2025 and ELC OS E065 of 2025 in so far as their dispensation on hearing and determination is concerned.*** 4. ***The costs of this application be borne by the respondent herein.*** 5. The motion is premised on the grounds set out on its face and is supported by the affidavit of the 1st Applicant, Elizabeth Kamau Wambui. She deponed that she had filed an application under a certificate of urgency seeking to be joined as a party in **Nairobi ELC OS No. E065 of 2025**, which came up before Hon. Justice C. Mbogo on 12th February 2026. 6. She explained that during the aforesaid proceedings, it was brought to the attention of the court that the dispute in that matter concerned the same subject property, as that in the present proceedings namely L.R. No. 2327/72. Consequently, Hon. Justice C. Mbogo directed that the file in **Nairobi ELC OS No. E065 of 2025** be placed before this court for mention and further directions on 19th February 2026. 7. Ms. Wambui deponed that she only recently became aware of the existence of these proceedings and, upon perusing the pleadings, discovered that the Respondent had expressly referred to her younger brother in paragraphs 7 and 8 of the supporting affidavit to the Petition. Further, the Respondent had admitted that her late mother was buried on the suit property near their homestead, a matter which she considered central to the dispute and one that ought to be fully ventilated during the hearing. 8. The 1st Applicant/Intended Interested Party stated that neither she nor any member of her family had been joined in the proceedings or notified of its existence in any manner, notwithstanding that their interests were directly implicated in the dispute. In the circumstances, she contended that it is necessary and prudent that she be afforded an opportunity to participate in the matter owing to her direct interest in the subject property. 9. She maintained that the issues raised in the present proceedings and those in **Nairobi ELC OS No. E065 of 2025** are closely intertwined, both relating to claims over ownership and rights in respect of the same property, thereby necessitating a substantive hearing on the merits to ensure a just determination. 10. Ms. Wambui asserted that the Respondent had deliberately failed to involve her in the proceedings with the intention of securing orders adverse to her interests without affording her an opportunity to be heard, contrary to the principles of fairness and natural justice. 11. She added that as advised by counsel, it is improper for two matters concerning the same subject property to proceed simultaneously before courts of concurrent jurisdiction, as this will create the risk of conflicting determinations. She urged the court to grant her an opportunity to place before the court her response to the Petition. 12. Finally, she averred, unless the orders sought are granted, she, her family, and other occupants of the property stand at risk of being rendered homeless and destitute should judgment be delivered in favour of the Respondent. As the firstborn in her family, she deposed that it is her responsibility to protect their interests and that she has already prepared a draft response to the Petition to facilitate her participation in the proceedings. 13. The 2nd Applicant’s/Intended Respondent’s motion is brought pursuant to the provisions of **Articles 48, 50, 159** of the **Constitution**, **Section 1A,1B, ЗA and 3B** of the **Civil Procedure Act**, and **Order 51, Rules 1 and 2** of the **Civil Procedure Rules**, seeking the following reliefs: 14. ***The Honorable court be pleased to grant leave or allow for joinder of the applicant as a respondent to the main petition and to file a response to the petition with the petitioner amending the pleadings by incorporating the respondent.*** 15. ***The Honorable court be pleased to issue directions over Constitutional Petition E076 of 2025 and ELC OS E065 of 2025 in so far as their dispensation on hearing and determination is concerned.*** 16. ***The costs of this application be born by the respondent herein.*** 17. The motion is supported by the affidavit of Brian Kan'gethe Ngatunyi, the 2nd Applicant herein. He deponed that that he is the Plaintiff in **Nairobi ELC OS No. E065 of 2025,** which came up before Hon. Justice C. Mbogo on 12th February 2026 for further directions and the hearing of an application by an Intended Interested Party and that during those proceedings, it was brought to the attention of the court that this matter concerns the same subject property, namely L.R. No. 2327/72. Consequently, Hon. Justice C. Mbogo directed that the file in **ELC OS No. E065 of 2025** be placed before this court for mention and further directions on 19th February 2026. 18. According to Mr Kang’ethe, owing to his interest in the subject property, he ought to be allowed to participate in the proceedings. He stated that upon reviewing the pleadings, he discovered that the Respondent had expressly referred to him in paragraphs 7 and 8 of the supporting affidavit to the Petition. There was as such, he explained, no reason for his exclusion from these proceedings. 19. Mr. Kan’gethe further deponed that there is nothing exhibited in the Petition or the accompanying pleadings to demonstrate that he had ever been served with, notified of, or informed about the existence of the present proceedings so as to enable him to participate appropriately. He pointed out that the Respondent had acknowledged the existence of his mother’s gravesite on the suit property near the homestead where he resides, a central issue requiring determination at the substantive hearing. 20. It is his position that the reliefs sought in the present Petition are closely connected to those sought in **ELC OS No. E065 of 2025**, and that both matters concern competing claims over rights and ownership of the same property. He therefore believes that the dispute ought to be heard on its merits through a substantive hearing so as to facilitate a just determination. 21. He contended that his exclusion from the proceedings amounts to condemning him unheard and that it is unfair and unjust for the matter to proceed without affording him an opportunity to defend himself, particularly when he has been expressly identified by the Respondent as a person in occupation and possession of the suit property. 22. According to Mr. Kan’gethe, the Respondent deliberately excluded him from the proceedings in an attempt to deny him an opportunity to defend his interests and thereby obtain judgment in its favour. He further stated that he had been advised by counsel that it is improper for two matters concerning the same subject property to proceed concurrently before courts of the same jurisdiction, as this creates the risk of conflicting determinations. 23. He further explained that the present matter had reached an advanced stage and was on the verge of conclusion despite his non-participation. According to him, the tenets of justice require that every person whose rights and interests may be affected by a court's decision be afforded a fair and equal opportunity to be heard. He maintained that the application had been brought without undue delay and on merit. 24. Finally, he deponed that he and his family stand at risk of being rendered homeless and destitute should judgment be delivered in favour of the Respondent before they are heard. He explained that, in the interests of justice and to safeguard his rights, he had already prepared a draft response to the Petition setting out his position and interests in the suit property. 25. In response to the motions, the Petitioner/Respondent, through its Principal Investigations Officer, Ali Ibrahim, filed a replying affidavit dated 21st April, 2026. He deponed that the Petition had been properly served upon the occupants of the suit property long before the scheduled date for delivery of judgment. He explained that pursuant to orders issued by the court on 9th September, 2025 permitting substituted service, the Petition and supporting documents were published in the Standard newspaper on 15th September, 2025. 26. According to him, upon the substituted service and out of abundance of caution, personal service was thereafter effected on 6th October, 2025 upon Shedrick Amuhaya Akwuyanga, who resides on the property and was the lead Plaintiff in **ELC No. 562 of 2018 (O.S)**. He stated that Mr. Akwuyanga acknowledged receipt by signing the documents and that a return of service was subsequently filed in court on 7th October, 2025. Following satisfaction as to service, the court directed that the Petition be disposed of by way of written submissions. 27. According to Mr. Ibrahim, the Applicants had both actual and constructive notice of the Petition long before filing their applications for joinder on 13th February, 2026. According to him, the applications constitute an afterthought intended solely to derail the proceedings. He maintained that the Applicants are neither necessary nor proper parties to the Petition within the meaning of **Order 1 Rule 10(2)** of the **Civil Procedure Rules**. 28. He explained that prior to filing the Petition, the Respondent had undertaken extensive inquiries with the Public Trustee, the Civil Registration Services and the local administration in an effort to identify any heirs or legal representatives of the registered proprietors and that no verifiable heirs or representatives had come forward for nearly thirty years. 29. Further, he noted, despite repeated requests and formal summons issued during the investigations, neither the Applicants nor Shedrick Amuhaya Akwuyanga had produced any documentary evidence, including burial permits, marriage certificates, wills, employment records, birth certificates or succession documents, to establish any blood, marital, employment or other lawful relationship with the registered proprietors. 30. Mr. Ibrahim further stated that the Applicants’ claims are undermined by a subsisting ruling delivered on 13th June 2019 in **ELC No. 562 of 2018 (O.S) – Shedrick Akuyanga Amuhaya & 4 Others vs John Francis Rourke & Another**. According to him, the Applicants derive their alleged claim of adverse possession from the same chain of occupation considered in that matter and, consequently, their present claims are similarly tainted and unsustainable. 31. It was his assertion that on 6th December, 2024 the Registrar of Titles published Gazette Notice No. 16227 cancelling certificates of title fraudulently procured through subdivisions of L.R. No. 2327/72. According to him, the Gazette Notice specifically identified Brian Kang’ethe Ngatunyi as having fraudulently procured title to L.R. No. 2327/361. It was therefore his position that the 2nd Applicant's occupation and claim to the land is tainted by fraud and that he cannot properly invoke equitable doctrines such as adverse possession. 32. Mr. Ibrahim also deponed that the Applicants and their family had previously attempted to include L.R. No. 2327/72 and its subdivisions as part of the estate of Simon Ngatunyi Chabi (deceased) in Succession Cause No. 1239 of 2010. According to him, this conduct formed part of a continuing scheme to lay claim to the property fraudulently. 33. He further asserted that **ELC No. E065 of 2025**, filed on 30th September 2025, was a reactive suit instituted after service of the Petition and was intended to obstruct the hearing and determination of the present proceedings. In his view, the Applicants ought to have sought joinder in the Petition rather than commencing parallel proceedings. 34. The deponent urged that the Applicants are neither necessary nor proper parties to the Petition because the sole issue for determination is whether the registered proprietors have been absent and untraceable for nearly thirty years, with no identifiable heirs, thereby causing the property to escheat to the State as public land under **Article 62(1)(e)** of the **Constitution.** These issues are purely constitutional and public-interest questions capable of determination on the evidence already before the court without the participation of the Applicants. 35. He expressed that the applications for joinder were brought too late in the day and without any satisfactory explanation for the reasons thereof notwithstanding the earlier substituted and personal service of the Petition. On that basis, he urged the court to dismiss the applications and proceed to determine the Petition on its merits without further delay. 36. The 2nd Applicant, Mr. Brian Kang’ethe Ngatunyi, filed a further affidavit dated 15th May, 2026. At the outset, he challenged the competence of the affidavit sworn on behalf of the Respondent on the basis that the deponent, being merely an investigator in the employment of the Respondent, lacked the requisite authority to swear the affidavit on behalf of the commission. 37. According to him, the deponent is neither a commissioner, chief executive officer nor director of the commission, and no resolution, authorization, consent or other document had been exhibited to demonstrate that he was authorized to sign pleadings or represent the commission rendering the replying affidavit defective for want of legal capacity. 38. Mr. Kang’ethe reiterated that he had never been personally served with any pleadings in the matter noting that service upon Shedrick Amuhaya could not constitute service upon him since he and Mr. Amuhaya are different persons. He explained that he had never authorized Mr. Amuhaya to receive documents on his behalf as an agent and that nothing had been exhibited to show that he had personally been served. 39. He maintained that the Applicants are necessary and proper parties to the proceedings since they are occupants and residents on the suit property and ought not to be condemned unheard. This fact, was acknowledged by the Petitioner. 40. Mr. Kang’ethe further explained that he is a complete stranger to **ELC No. 562 of 2018 (O.S.)** having not participated therein and nothing had been exhibited to show otherwise. Similarly, he denied the allegations that he had fraudulently procured a certificate of title, stating that he had never been reported to the police, no occurrence book entry existed against him, and no criminal proceedings had ever been instituted in relation to the allegations. 41. He also disputed the assertion that the suit property formed part of any succession proceedings, explaining that the registered ownership of the land was different from the name of the deceased person referred to by the Respondent. According to him, **ELC (OS) No. E065 of 2025** had been filed before he became aware of the existence of the present Petition and, consequently, could not be described as an afterthought. It was his position that he had a legitimate interest in the property which entitled him to challenge the Petitioner’s claim. 42. Mr. Kang’ethe urged that the interests of justice required that all parties claiming an interest in the property be afforded an opportunity to be heard and that the dispute be determined on its merits. His claim for adverse possession, he explained, is founded on his long occupation of the property and the existence of his mother’s gravesite thereon since 2006. 43. He maintained that the property is private land and not public land, and that his claim raises substantive issues requiring determination by the court. He concluded by asserting that the matters raised in the Petition are not purely constitutional in nature and that the court ought to consider and determine the proprietary interests he seeks to advance. **Submissions** 1. The 2nd Applicant’s counsel filed submissions on 12th March, 2026. Counsel submitted that the Applicant is a necessary party whose interests will be directly affected by the outcome of the Petition. It was argued that despite being identified in the Petition as an occupant and resident of the suit property, the Applicant had not been joined to the proceedings and had therefore been condemned unheard contrary to **Article 50** of the **Constitution.** 2. Counsel maintained that the Applicant has a direct stake in the suit property, having instituted **ELC (OS) No. E065 of 2025** seeking declarations relating to ownership, and that his participation is necessary to enable the court to effectually and completely determine all issues in dispute meeting the parameter for joinder under **Order 1 Rule 10(2)** of the **Civil Procedure Rules**. 3. Cited in support were the cases of ***Francis Karioki Muruatetu & Another vs Republic & 5 Others [2016] eKLR,*** and ***Communications Commission of Kenya & 4 Others vs Royal Media Services Ltd & 7 Others [2014] eKLR.*** It was urged that the application had been made promptly upon discovery of the proceedings and that no prejudice would be occasioned to the Petitioner if joinder was allowed. 4. On consolidation and case management, counsel submitted that the present proceedings and **ELC (OS) No. E065 of 2025** concern the same property, L.R. No. 2327/72, and involve competing claims relating to ownership and interests in the land. It was therefore urged that the court issue appropriate directions on the manner in which the two matters should proceed, including the possibility of consolidation. Reliance was placed on ***Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa (2000) eKLR*** on the principles governing consolidation of suits. 5. Counsel ultimately urged the court to grant the orders sought, contending that the Applicant's participation is necessary to achieve a just determination of the dispute. It was further submitted that, in the interests of fairness and justice, the proceedings should be set aside and heard afresh on their merits. 6. The Respondent’s counsel filed submissions on 21st April, 2026. Counsel submitted that service of the Petition was effected in accordance with both the Civil Procedure Rules and the directions of the court issued on 9th September 2025, which authorized substituted service through publication in a newspaper of national circulation. Pursuant to those directions, the Petition and supporting documents were published in the Standard newspaper on 15th September, 2025. According to him, the mode of service was expressly sanctioned by the court and was therefore valid and sufficient. 7. Counsel submitted that in addition to the court-authorized substituted service, the Petitioner undertook personal service out of abundance of caution on 6th October, 2025 and that the Petition and accompanying documents were personally served upon Shedrick Amuhaya Akwuyanga (ID No. 22210599), who resides on the suit property and was the lead plaintiff in **ELC No. 562 of 2018 (O.S.) – *Shedrick Akuyanga Amuhaya & 4 Others vs John Francis Rourke & Another [2019] KEELC 2808 (KLR)*.** He stated that Mr. Akwuyanga duly acknowledged receipt of the documents by signing for them. 8. It was submitted that the purpose of service is not the observance of procedural formalities for their own sake, but rather to ensure that affected persons receive adequate notice of the proceedings. In that regard, reliance was placed on ***Shah vs Mbogo [1967] EA 116*** and ***Moses Mwangi Kimari vs Shammi Kanjirapparambil Thomas [2014] eKLR*** for the proposition that court-authorized substituted service is legally effective and binding once properly effected. 9. Also cited was ***Nairobi City County Government vs Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers [2019] eKLR***. 10. Counsel submitted that joinder under **Order 1 Rule 10(2)** of the **Civil Procedure Rules** is only available where a party has a legal interest in the subject matter and whose presence is necessary for the court to effectually and completely determine the issues in dispute. 11. In this case, it was submitted, the Applicants do not meet this threshold because the Petition concerns the constitutional and public-law question of whether the suit property has escheated to the State under **Article 62(1)(e)** of the **Constitution and that** any occupation or adverse possession claims advanced by the Applicants had already been determined in ELC No. 562 of 2018 (O.S.), and as such, the Applicants have not demonstrated legitimate interest as expressed in ***Francis Karioki Muruatetu & Another vs Republic & 5 Others [2016] eKLR.*** 12. It was submitted that once fraud is established, any rights purportedly flowing from the impugned title, including claims founded on possession, collapse as a matter of law as stated in ***Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 Others [2015] eKLR***. 13. Also referenced was **Section 26(1)(a)** and **(b)** of the **Land Registration Act** to support the contention that titles acquired through fraud, illegality or a corrupt scheme cannot form the basis of rights capable of maturing into ownership through adverse possession. Further reliance was placed on ***Mtana Lewa vs Kahindi Ngala Mwagandi [2015] eKLR*** and ***Wambugu vs Njuguna [1983] KLR 172.*** 14. Counsel submitted that the Applicants cannot rely on adverse possession to legitimize conduct already found to be fraudulent. It was further argued that the Applicants and their family had previously attempted to bring L.R. No. 2327/72 and its subdivisions into Succession Cause No. 1239 of 2010, an attempt that was rejected by the High Court on the basis that ownership of the property was contested and fell outside the jurisdiction of the Probate Court. According to counsel, this demonstrated a continuing pattern of efforts to assert unlawful claims over the land through improper legal processes. 15. On delay, counsel submitted that the Applicants had been indolent and had abused the court process by seeking joinder only on 13th February, 2026, several months after the Petition had been filed and served in September and October 2025. It was argued that the delay was inordinate, unexplained and intended to obstruct the conclusion of the proceedings rather than facilitate justice. Reliance was placed on ***Ivita vs Kyumbu [1984] KLR 441*** and ***JMK vs MWM & Another [2015] eKLR and JMK v. MWM & Another [2015] eKLR.*** 16. The 2nd Applicant filed supplementary submissions on 18th May 2026. Counsel submitted that Ali Ibrahim, being an investigations officer, lacks the authority to represent or execute pleadings on behalf of the Respondent, a constitutional commission. It was submitted that no resolution, authorization or other document had been produced demonstrating that he was authorized to swear affidavits on behalf of the commission. 17. Consequently, counsel urged that the replying affidavit dated 21st April, 2026 be struck out for want of capacity. Reliance was placed on ***Kiluwa Limited & Another vs Commissioner of Lands & 3 Others [2015] eKLR***, and ***Sisilia Nyakoe & Another vs Attorney General & 4 Others [2021] eKLR.*** 18. Counsel submitted that the Applicant was never personally served with the Petition and that service upon Shedrick Amuhaya Akwuyanga could not amount to service upon the Applicant, as they are separate individuals and that there was no evidence that Mr. Akwuyanga had authority to receive documents on the Applicant’s behalf. 19. Counsel further submitted that the Applicant was not a party to **ELC No. 562 of 2018 (O.S.),** had never participated in those proceedings, and that none of the documents exhibited by the Petitioner demonstrated otherwise. Further, it was submitted that the Applicant was not involved in the alleged fraudulent acquisition of title, and that no criminal complaint, occurrence book entry, charge sheet or criminal proceedings had been produced to support the allegations. 20. Counsel further denied that the suit property formed part of the Applicant’s father’s estate in Succession Cause No. 1239 of 2010 and pointed out that the Family Court had already directed that questions relating to ownership of L.R. No. 2327/72 and 2327/357 be determined by the Environment and Land Court. 21. Counsel further contended that **ELC (OS) No. E065 of 2025** had in fact been filed before the present Petition and could not therefore be described as an afterthought. Counsel urged the court to find that the delay was neither deliberate nor inordinate and to allow the application in the interests of access to justice, fair hearing and substantive justice under Articles **48, 50 and 159** of the **Constitution.** **Analysis and Determination** 1. Having considered the pleadings and submissions, the issues that arise for determination are: 2. *Whether the Petitioner/Respondent’s replying affidavit is competent?* 3. *Whether the Applicants should be joined into these proceedings?* 4. *Whether this matter should be consolidated with ELC OS E065 of 2025?* **Whether the Petitioner/Respondent’s replying affidavit is competent?** 1. In his Further Affidavit, the 2nd Applicant challenges the competence of the replying affidavit sworn by Ali Ibrahim, contending that the deponent, being a Principal Investigations Officer, lacks the requisite authority to swear the affidavit on behalf of the Respondent. 2. He asserted that no resolution, letter of authority, consent, or any other documentary evidence was exhibited to demonstrate that Ali Ibrahim had been duly authorized by the Respondent to execute pleadings or represent it in these proceedings. 3. It is indeed trite that an affidavit sworn on behalf of a juristic entity must be sworn by a person authorized to do so. However, the law has evolved from the rigid position that authority must be demonstrated through a formal resolution. In ***Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others [2015] eKLR,*** the Court of Appeal observed that it is no longer the law that a board resolution must be exhibited before proceedings may be instituted or defended on behalf of a corporate body. 4. The court endorsed the principle that, unless the contrary is shown, a person authorized to act on behalf of the entity may validly undertake such acts without the necessity of exhibiting a formal resolution in every instance. 5. Applying those principles to the present case, the court notes that the 2nd Applicant has merely asserted that the deponent lacks authority but has placed no material before the court to demonstrate that this was indeed the case. In the absence of such evidence, the court cannot speculate that the deponent acted without authority. 6. The presumption is that an officer swearing an affidavit on behalf of an entity does so with the requisite authority unless the contrary is demonstrated. Accordingly, the court finds no basis for striking out the replying affidavit on grounds of want of authority or legal capacity. **Whether the Applicants should be joined into these proceedings?** 1. The law in respect of joinder of parties for constitutional petitions is provided for in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 referred to as the Mutunga Rules. **Rule 5** thereof provides as follows: *“****The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—*** 1. ***Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.*** 2. ***A petition shall not be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every proceeding deal with the matter in dispute.*** 3. ***Where proceedings have been instituted in the name of the wrong person as petitioner or where it is doubtful whether it has been instituted in the name of the right petitioner, the court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.*** 4. ***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 just—*** 5. ***Order that the name of any party improperly joined, be struck out; and*** 6. ***That the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.*** ***( e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.”*** 1. Speaking to the rationale for joinder, the Court of Appeal in ***Merry Beach Limited vs Attorney General & 18 others [2018] KECA 18 (KLR)*** stated thus: ***“The right to be heard before an adverse decision is taken against a party is fundamental and permeates our entire justice system. This Court in*Mbaki & Others vs. Macharia & Another [2005] 2 EA 206*, at page 210, while underscoring the significance of that right expressed:*“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”** ***It is for that reason that our legal system has embedded relevant provisions in the*Constitution*and legislative texts to ensure the realization of that right. Of relevance to the appeal before us is*Rule 5 (d) (ii)*of the*Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 *(popularly known as Mutunga Rules) which provides-*“5.(d) 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 just-(i) order that the name of any party improperly joined, be struck out; and (ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added. *Emphasis added.”*** 1. As to what point in time such joinder can be made, the Court of Appeal in**J M K vs. M W M & Another [2015] eKLR**stated as follows: **“We would however agree with the respondent that Order 1 Rule (10) (2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court. Sarkar’s Code, (supra) quoting as authority, decisions of Indian Courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings. In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 Rule 10(2) of our Civil Procedure Rules, in Tang Gas Distributors LTD. vs. Said & Others [2014] EA 448, stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage.”** 1. Indeed, the present proceedings are still live, no judgment having been entered. The court has considered the rival positions taken by the parties, the evidence placed before it, and the applicable principles governing joinder of parties. 2. Beginning with the question of whether there has been inordinate delay in bringing the present applications, and that the same constitutes an abuse of the process of the court, the court notes that the Applicants have consistently maintained that they only became aware of the existence of these proceedings when the matter arose in the course of proceedings in **ELC (OS) No. E065 of 2025** before Hon. Justice C. Mbogo on 12th February 2026. The present applications were filed the following day, on 13th February 2026. 3. Although service of the Petition was effected through a newspaper advertisement published pursuant to orders for substituted service and subsequently upon one Shedrick Amuhaya Akwuyanga, no evidence has been placed before the court demonstrating that either of the Applicants was personally served with the Petition or that the same was otherwise brought to their attention. Equally, there is no material demonstrating that Mr. Akwuyanga was authorized to receive pleadings on behalf of the Applicants. 4. In those circumstances, the court is unable to conclude that the Applicants had actual notice of the proceedings at an earlier stage. Once they became aware of the Petition, they moved the court with reasonable promptitude. The applications cannot therefore be said to have been brought after inordinate or unexplained delay. Similarly, no evidence has been placed before the court to demonstrate intent by the Applicants to abuse the court process or frustrate the determination of this Petition. 5. Moving to the merits, the Petition before the court seeks a declaration that L.R. No. 2327/72 has escheated to the State and consequently constitutes public land under **Article 62(1)(e)** of the **Constitution** on the basis that the registered proprietors have been absent and untraceable for decades and that no heirs can be identified through any legal process. 6. In support of that position, the Petitioner relies on investigations undertaken by various state agencies, including the Public Trustee, the Civil Registration Services and the local administration through the Deputy County Commissioner. 7. However, it is noteworthy that those same investigations revealed the existence of persons in occupation of the suit property who claim a connection to the registered proprietors and who continue to assert interests in the land. The Respondent's own affidavits specifically identify the 2nd Applicant herein, Brian Kang’ethe Ngatunyi and one Shadrack Amuhaya Kahurangi as persons found on the property during the investigations. 8. The Respondent asserts that because the Petition raises a constitutional question concerning the alleged escheat of the suit property to the State under **Article 62(1)(e)** of the **Constitution**, the Applicants are not proper parties herein**.** With respect, the court is unable to agree. The question whether the property has escheated to the State cannot be determined in a factual vacuum. It necessarily requires an inquiry into whether there exist heirs, beneficiaries, successors, legal occupiers or other persons capable of asserting a legally cognizable interest in the property. 9. The existence or otherwise of such persons lies at the very core of the Petition. Consequently, where persons have come forward claiming occupation of, and an interest in, the suit property, the court cannot properly determine the issues raised in the Petition without affording them an opportunity to be heard. 10. Similarly, the court has considered the Respondent’s allegations of fraud, including the contention that certain titles arising from subdivisions of the suit property were cancelled through Gazette Notice No. 16227 of 6th December, 2024 and that the 2nd Applicant's claims are thereby tainted. However, the existence of such allegations cannot, at this stage, justify the exclusion of the Applicants from the proceedings. 11. Whether the alleged subdivisions were fraudulent, whether the Gazette Notice was lawfully issued, and whether the Applicants possess any enforceable rights in relation to the property are matters that can only properly be determined upon a full hearing. Those issues go to the merits of the competing claims and not to the question of whether the Applicants should be heard. 12. The court has further considered the Petitioner's reliance on **ELC No. 562 of 2018 (O.S.)** as demonstrating that the claims now being advanced are unsustainable. That as an issue that can only be determined upon hearing all the parties at trial, or by way of a distinct application. As regards **Succession Cause No. 1239 of 2010 – In the Matter of the Estate of Simon Ngatunyi Chabi (Deceased),** the court was categorical that the ownership of LR No. 2327/72 should be determined by this court. 13. Taking all the foregoing circumstances into account, the court is satisfied that the Applicants have demonstrated a direct, identifiable and proximate interest in the subject matter of the Petition. Their participation is therefore necessary to enable the court effectually and completely adjudicate upon and settle all the questions arising in dispute. **Whether this matter should be consolidated with ELC OS E065 of 2025?** 1. Through their respective applications, the Applicants urge the court to issue appropriate directions regarding the hearing and determination of this Petition and Nairobi ELC (OS) No. E065 of 2025. Although framed as a prayer for directions, it is apparent that the Applicants seek consideration of whether the two matters should proceed together, including the possibility of consolidation, on the basis that they concern the same parcel of land, namely L.R. No. 2327/72. 2. The Respondent opposes that request. It contends that the present proceedings concern the distinct constitutional question of whether the suit property has escheated to the State and consequently constitutes public land under **Article 62(1)(e)** of the **Constitution,** whereas **ELC (OS) No. E065 of 2025** is a private law claim founded on adverse possession. The two, it is urged, raise different causes of action, are founded upon different legal principles, and should therefore proceed independently. 3. The principles governing consolidation of suits are now well settled.The Supreme Court of Kenya outlined the relevant guiding principles on consolidation in ***Omoke vs Kenyatta & 83 others (Petition 11 (E015) of 2021) [2021] KESC 27 (KLR)*** as follows: *“****Consolidation of suits or appeals will be ordered where there are common questions of either law or fact in two or more suits or appeals and where it is desirable that all the related matters be disposed of at the same time.”*** 1. Speaking to the essence of consolidation of suits, the Apex Court stated thus in ***Law Society of Kenya vs Centre for Human Rights and Democracy & 12 others (Petition 14 of 2013) [2014] KESC 29 (KLR) (8 April 2014) (Ruling):*** ***“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 meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. In the matter at hand, this Court would have to be satisfied that the appeals sought to be consolidated turn upon the same or similar issues. In addition, the Court must be satisfied that no injustice would be occasioned to the respondents if consolidation is ordered as prayed.”*** 1. Guided by those principles, the court has considered the nature of the present Petition and ELC (OS) No. E065 of 2025. There is no dispute that both matters concern the same parcel of land, namely L.R. No. 2327/72. In both proceedings, the status, ownership and legal entitlement to that property form the central controversy requiring determination by the court. 2. In the present Petition, the National Land Commission seeks a declaration that L.R. No. 2327/72 has escheated to the State and consequently constitutes public land under **Article 62(1)(e)** of the **Constitution** on the basis that the registered proprietors are presumed deceased and that no heir can be identified through any legal process. 3. Conversely, in **ELC (OS) No. E065 of 2025,** Brian Kang’ethe Ngatunyi seeks declarations that he has acquired title to the very same property by adverse possession and that the registered proprietors’ title has been extinguished by operation of law. 4. Although the causes of action are different, the factual foundation underpinning both proceedings substantially overlaps. In each case, the court is required to interrogate the proprietorship of L.R. No. 2327/72, albeit under different legal principles. 5. The court is therefore satisfied that common questions of fact and law arise in both proceedings. If the matters were to proceed independently before different courts, there would exist a real possibility of inconsistent or conflicting findings regarding the status of the property, the existence of persons entitled to assert claims over it, and the legal consequences flowing from the prolonged absence of the registered proprietors. 6. The Respondent has argued that **ELC (OS) No. E065 of 2025** was filed after commencement of the Petition and constitutes an abuse of the court process intended to frustrate the present proceedings. However, whether the Originating Summons is incompetent, amounts to an abuse of process, is barred by law, or is otherwise unsustainable are substantive questions that fall for determination within the proceedings themselves. 7. The court is further satisfied that no prejudice will be occasioned to any party if the matters are consolidated. Rather, consolidation will promote the efficient use of judicial resources, avoid duplication of evidence, minimize the risk of conflicting decisions, and facilitate a comprehensive determination of all disputes relating to L.R. No. 2327/72 in a single forum. 8. Consequently, the court finds that Constitutional Petition No. E076 of 2025 and ELC (OS) No. E065 of 2025 raise common questions of law and fact, concern the same suit property, and ought to be heard together. The court will however deal with the distinct legal principles in the consolidated Judgment. 9. In the end, the court finds the motions to be merited and directs as follows: 10. **The Applicants are hereby joined to the Petition as the 1st and 2nd Respondents respectively.** 11. **The Petition is hereby consolidated with ELC (OS) No. E065 of 2025. Constitutional Petition No. E076 of 2025 shall be the lead file.** 12. **Costs shall abide the outcome of the two suits**. **Dated, signed and delivered virtually in Nairobi this 5th day of June, 2026.** **O. A. Angote** **Judge** **In the presence of:** N/A for the Petitioner Mr. Mwaura for the 1st Applicant Ms Wanyama for the 2nd Applicant Court Assistant: Tracy