https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4961

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **MILIMANI LAW COURTS** **ELC CASE NO. 566 OF 2017** **NDIRIKANIA COMPANY LIMITED ……………....……..…….. 1ST PLAINTIFF** **DAVID MACHARIA THIGA .………………………………...… 2ND PLAINTIFF** **JOSEPH MUGWIMI MWANGI ………………………….…… 3RD PLAINTIFF** **PETER GICHUNJI HEHO …………….………………………… 4TH PLAINTIFF** **LUCY WAMBUI GITHAIGA ………………..……………………5TH PLAINTIFF** **NANCY NJOKI NGUNJE KARIITHI …………………….……. 6TH PLAINTIFF** **MICHAEL MUTUA MWENGA ………………………………… 7TH PLAINTIFF** **VERSUS** **TADDEO MUIRURI MUINGAI …………….…………….….. 1ST DEFENDANT** **ROBERT MACHARIA KURIA ……………...……………….. 2ND DEFENDANT** **JAMES MUNGAI MUIRURI ………………………………… 3RD DEFENDANT** **MOSES MAINA NGUGI ………………………………….…. 4TH DEFENDANT** **EDWARD NJENGA MUCHAI ……………………………… 5TH DEFENDANT** **LAND REGISTRAR, NAIROBI .……………..………………. 6TH DEFENDANT** **AND** **PHYLLIS WANGUI KITAVI ………………………….. 1ST INTERESTED PARTY** **SIMON KIBAKI KANGETHE …………………..…… 2ND INTERESTED PARTY** **RULING** 1. The court is called upon, by way of an application dated 3.6. 2026, to grant the following orders sought by the applicant: 2. That Phyllis Wangui Kitavi and Simon Kibaki Mathenge be enjoined as defendants/interested parties. 3. That Phyllis Wangui Kitavi and Simon Kibaki Mathenge be served with all pleadings and other necessary documents. 4. Phyllis Wangui Kitavi be granted leave to file and serve their pleadings. 5. That witnesses who have testified be recalled for purposes of cross examination by the interested parties. 6. That the cost of this application be paid for by the Plaintiff in any event. 7. The application is premised on the grounds set out on its face and is supported by the affidavit of Phyllis Wangui sworn on 3.6.2026. 8. The deponent avers that she is duly authorized to swear the supporting affidavit on behalf of the 2nd Intended Interested Party. However, no written authority evidencing such authorization has been annexed to the affidavit. 9. It is deposed that the 1st and 2nd Intended Interested Parties have, at all material times, been shareholders of the 1st Respondent company. The deponent states that they jointly hold thirteen (13) fully paid-up shares in the company and has annexed a copy of the share certificate marked **"PWK-1"** in support of that assertion. 1. The deponent further avers that the 1st Respondent maintains a register of members in which the Intended Interested Parties are recorded as Member No. 350. A copy of the relevant extract from the register has been annexed and marked **"PWK-2"**. 2. It is further deposed that the 1st Respondent was the registered proprietor of Land Reference No. Nairobi Block 135/6821. The deponent states that, in 1994, the 1st Respondent subdivided the said parcel into individual plots numbered Nairobi Block 135/2 to Nairobi Block 135/357, which were subsequently registered in the company's name in 2016. 3. According to the deponent, the resultant plots were allocated to the company's shareholders in accordance with the register of members, each shareholder being allocated a plot corresponding to his or her membership number. It is averred that, being registered as Member No. 350, the Intended Interested Parties were consequently allocated L.R. No. Nairobi Block 135/350. 4. The deponent further avers that, upon allocation of a plot, it was the 1st Respondent's practice to execute the requisite transfer instruments in favour of the allottee and to furnish the allottee with the duly executed original transfer of lease, the original certificate of lease, and copies of the national identity cards and KRA PIN certificates of two directors to facilitate registration of the property in the allottee's name at the allottee's convenience. 5. It is further deposed that, in 2016, upon payment of the requisite charges, the 1st Respondent allocated L.R. No. Nairobi Block 135/350 to the 1st Intended Interested Party and issued the original certificate of lease, the duly executed transfer of lease, together with copies of the directors' national identity cards and KRA PIN certificates to facilitate registration of the lease in the names of the Intended Interested Parties. 6. The deponent further states that L.R. No. Nairobi Block 135/350 forms part of the parcels of land in respect of which the Plaintiffs seek orders for cancellation or revocation of the sale, allocation and transfer. Consequently, the Intended Interested Parties contend that they have a direct and identifiable stake in the subject matter of the suit and ought to be enjoined in these proceedings to safeguard their interests. 7. The application is opposed. The 2nd Plaintiff/Respondent filed a replying affidavit sworn by David Macharia Thiga on 14.7.2026 in opposition thereto. 8. The Respondent contends that the 1st and 2nd Intended Interested Parties are already parties to Civil Suit No. MCCC/E12530 of 2021, which is currently pending determination, wherein the question of ownership of LR No. Nairobi Block 135/350 is directly in issue. In support of this contention, the Respondent has annexed copies of the Applicant's pleadings filed in the said suit. 9. The Respondent further deposes that the Plaintiffs in the present suit have already closed their case, and that the joinder of the Intended Interested Parties at this stage would occasion undue delay in the expeditious disposal of the suit. 10. It is further the Respondent's position that the instant application is misconceived, legally untenable, an afterthought, and amounts to an abuse of the court process. 11. For the avoidance of doubt, the Court observes that the term **"enjoin"** is capable of bearing different legal meanings depending on the context in which it is employed. In the present application, the Applicant seeks to be enjoined as a party to these proceedings. Before determining the merits of that request, the Court considers it necessary to clarify the legal import of the term. 12. As defined in **Black's Law Dictionary (12th ed.),** the term "enjoin" has two accepted legal meanings. In its primary sense, it denotes the act of commanding, directing, or restraining a person by lawful authority, most commonly through the grant of an injunction. It also connotes the imposition of a legal duty or obligation requiring a person to act or refrain from acting in a particular manner. 13. In the realm of civil procedure, however, the expression "to be enjoined" is frequently used, albeit imprecisely, to describe the addition of a person as a party to existing proceedings. The technically accurate legal expressions are joinder or being joined as a party. It is in this procedural sense that the term is invoked in the present application, and the Court shall accordingly determine the Applicant's request on that basis. In the instant application, it is evident that the Applicant does not seek injunctive relief but rather seeks admission into these proceedings as an interested party. 14. Accordingly, the Court shall treat the prayer as one for joinder and determine it on the basis of the established legal principles governing the joinder of parties under the applicable law and relevant jurisprudence. 1. Before delving into the merits of the application, the court is mindful of **Roscoe Pound's timeless observation in his book, *‘Interpretation of Legal History (1923)*’ that "Law must be stable, and yet it cannot stand still."** This dictum aptly illustrates the need for procedural law to strike a careful balance between the certainty afforded by established rules and the flexibility required to meet the demands of justice in individual cases. Courts have held that although the rules of civil procedure are designed to ensure order, consistency, and predictability in the conduct of litigation, they ought not to be applied so rigidly as to defeat substantive justice. 2. The Plaintiff’s case was closed on the 19/6/ 2024. The applicants through the present application seek to be joined as an interested party. Where an application for joinder as an interested party is made after the plaintiff has already closed its case, as is the position in the present matter, where the application is dated 3.6. 2026 while the plaintiff's case was closed on 19.6.2024, the grant of such an application lies within the discretion of the Court. Although **Order 1 Rule 10(2) of the Civil Procedure Rules** empowers the Court to order joinder at any stage of the proceedings, the applicant bears the burden of satisfactorily explaining the delay and demonstrating that the proposed joinder is necessary for the effectual and complete determination of the issues in dispute, and that it will not occasion prejudice, injustice, or undue delay to the existing parties. 3. The principles governing the joinder of interested parties have been authoritatively discussed and settled by the Courts. 4. In **Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others (Civil Appeal 290 of 2012) [2013] KECA 445 (KLR) (26 July 2013) (Judgment)**, the Court of Appeal defined an interested party as a person who, though not an original party to the proceedings, has an identifiable stake in the dispute and stands to be affected by the Court's determination. Such a person seeks to participate in the proceedings on the basis that his or her interest may not be adequately represented by the existing parties. 5. Further, in **Francis Karioki Muruatetu & Another v Republic & 5 Others (Petition 15 & 16 of 2015 (Consolidated) [2016] KESC 12 (KLR) (28 January 2016) (Ruling),** the Supreme Court held that joinder as an interested party is not a matter of right but rests in the discretion of the Court. An applicant must therefore demonstrate a proximate and identifiable stake in the proceedings, the prejudice likely to be suffered if joinder is declined, and the nature of the submissions intended to be advanced, which must be relevant to the issues before the Court and not merely repetitive of those already presented by the existing parties. 6. Similarly, in **Methodist Church in Kenya v Mohamed Fugicha & 3 Others (Petition 16 of 2016) [2019] KESC 59 (KLR) (23 January 2019) (Judgment),** the Supreme Court reaffirmed that the participation of an interested party is limited to assisting the Court in the effective determination of the issues in controversy. Accordingly, an interested party cannot introduce a new cause of action, enlarge the scope of the dispute, or fundamentally alter the character of the proceedings. 7. Likewise, in **Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 7 Others (Petition 14,14A, 14B & 14C of 2014 (Consolidated) [2015] KESC 13 (KLR) (5 January 2015)(Ruling)**, the Supreme Court observed that the role of an interested party is confined to safeguarding a recognizable stake in the outcome of the proceedings and does not elevate such a party to the status of a principal litigant. 8. From the foregoing decisions of the Supreme Court and Court of Appeal, it is evident that an applicant seeking to be joined as an interested party must satisfy certain well-settled principles. First, the applicant must demonstrate a clear and identifiable legal stake in the proceedings. Secondly, it must be shown that the Court's determination is likely to directly affect that stake. Thirdly, the applicant must establish that the existing parties are unlikely to adequately represent the interest sought to be protected. Fourthly, admission as an interested party is not a matter of right but lies within the sound discretion of the Court. Lastly, once admitted, an interested party is confined to the issues already before the Court and may neither introduce a new cause of action nor expand or alter the scope of the dispute. 9. Order 1 Rule 10(2) of the Civil Procedure Rules, which empowers the Court, at any stage of the proceedings, to add any person whose presence before the Court is necessary for the effectual and complete adjudication and settlement of all the issues in controversy. That jurisdiction, however, is not exercised as a matter of course. Rather, it is a discretionary power that must be exercised judicially and in a manner that advances the overriding objective embodied in **Sections 1A and 1B of the Civil Procedure Act,** namely the just, expeditious, proportionate, and affordable determination of civil disputes. In exercising that discretion, the Court must also give effect to **Article 159(2)(b) of the Constitution**, which enjoins courts to ensure that justice is administered without undue delay. 10. In the present application the intended interested parties claim to be the registered proprietors of L.R. No. Nairobi Block 135/350 which they say forms part of the suit properties and is likely to be affected by the reliefs sought by the Plaintiff. It is the interested parties’ contention that if the matter were to proceeds If the matter were to proceed without them being joined, the Court could issue orders adversely affecting or even extinguishing their proprietary interest in LR No. Nairobi Block 135/350 without affording them an opportunity to be heard. The Applicant avers that such prejudice is neither remote nor hypothetical; rather, it is immediate, real and substantial, given that the reliefs sought by the Plaintiff expressly encompass the cancellation of the Applicants' title. 11. Further, it is claimed that the participation of the Applicants is likely to assist the Court in effectively resolving the dispute by providing relevant evidence and submissions concerning their acquisition of LR No. Nairobi Block 135/350, the process through which the title was obtained, and the implications of the orders sought in relation to that property. The Applicant asserts that their involvement will therefore facilitate a comprehensive and effectual determination of all the issues in controversy. 12. The 2nd Respondent has further opposed the application on the ground that the Intended Interested Parties have already commenced separate proceedings concerning the ownership of L.R. No. Nairobi Block 135/350. In support of this contention, the 2nd Respondent has annexed the Defence and Counterclaim filed by the Intended Interested Parties in Milimani Commercial Court, **Civil Suit No. MCCC E12530 OF 2021.** 13. The Court has duly considered the Respondent's objection. However, the fact that the Applicants have instituted or are pursuing a counterclaim in a separate suit does not, of itself, preclude their joinder in the present proceedings. The Plaintiff herein seeks, among other reliefs, the cancellation of the subdivisions carved out of LR No. Nairobi Block 135/6821, including LR No. Nairobi Block 135/350, in which the Applicants claim ownership. It therefore follows that the outcome of these proceedings is capable of directly affecting the Applicants' proprietary rights and interests in the suit property, thereby giving them a sufficient stake in the matter to warrant their participation. 14. The Court further observes that there is uncertainty as to whether the Commercial Court seized of MCCC E12530 of 2021 is vested with jurisdiction to determine disputes concerning title to land, including the validity or cancellation of registered titles. Under **Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act**, matters relating to the environment and the use, occupation and title to land fall within the jurisdiction of the Environment and Land Court. In those circumstances, the mere existence of the commercial suit cannot, without more, operate as a bar to the Applicants' joinder in these proceedings. 15. At this interlocutory stage, the Court is not called upon to determine the merits of the Applicants' claim to LR No. Nairobi Block 135/350. Rather, the question for determination is whether the Applicants have demonstrated a sufficient and identifiable legal interest in the subject matter of the suit. Given that the Plaintiff seeks orders that may culminate in the cancellation of the Applicants' title, it is evident that the Applicants stand to be directly affected by the outcome of these proceedings. Their exclusion would therefore be inconsistent with the principles of natural justice, particularly the right of every person to be heard before a decision affecting their rights is made. 16. In the result, I am not persuaded by the Respondent's objection. I find that it raises no sufficient ground to deny the Applicants an opportunity to participate in proceedings whose outcome may directly affect their proprietary interests. 17. Be that as it may, the Court's jurisdiction to order the joinder of parties is a discretionary one, exercised with the overarching objective of ensuring that all matters in controversy are effectually and conclusively determined. 18. The jurisprudence on joinder is well established. In **Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55**, the Court emphasized that joinder is warranted where the presence of the proposed party is necessary for the effectual and complete adjudication of all issues in dispute. Likewise, in **Meme v Republic & Another [2004] eKLR**, the High Court held that joinder is appropriate where it facilitates the complete resolution of the issues before the Court, safeguards the rights of persons likely to be affected by the outcome, or forestalls a multiplicity of proceedings. The same principle was reaffirmed by the Court of Appeal in **Civicon Ltd v Kivuwatt Ltd & 2 Others [2015] eKLR**, where it was held that the decisive consideration is whether the intended party's participation is necessary for the just and complete determination of the dispute. 19. Although the application has been presented after the Plaintiff had closed its case, delay, however inordinate, is not of itself a sufficient ground for declining joinder where the Court is satisfied that the participation of the intended parties is indispensable to the effective and conclusive determination of the issues in controversy. While the Applicant has failed to provide a satisfactory explanation for the delay, the Court is persuaded that the demands of substantive justice outweigh the procedural lapse. 20. The Court is further satisfied that any prejudice likely to be suffered by the Plaintiff can adequately be remedied through an award of costs and, where appropriate, by granting the Plaintiff an opportunity to address any new issues arising from the joinder. Conversely, declining the application may result in the determination of issues affecting persons who are not parties to the proceedings, thereby compromising the Court's ability to effectually and conclusively resolve the dispute and potentially giving rise to unnecessary multiplicity of litigation. 21. Accordingly, guided by Articles 50 and 159(2) (d) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 1 Rule 10(2) of the Civil Procedure Rules, and the foregoing authorities, the Court is satisfied that this is an appropriate case for the exercise of its discretion. 22. Having considered the material before it and the applicable legal principles, the Court is satisfied that the Applicants have demonstrated a proximate and identifiable interest in the subject matter of the suit and have met the threshold for joinder as interested parties. Their presence before the Court is necessary to ensure that all issues arising in the proceedings are fully and fairly adjudicated upon. 23. The application is therefore allowed, notwithstanding the inordinate delay, in order to facilitate the just, effectual and complete determination of all the issues in controversy. 24. The upshot is that the court grants the following orders: 25. That Phyllis Wangui Kitavi and Simon Kibaki Mathenge be enjoined as defendants. 26. That Phyllis Wangui Kitavi and Simon Kibaki Mathenge be served with all pleadings and other necessary documents within 14 days 1. Phyllis Wangui Kitavi be granted leave to file and serve their pleadings 14 days upon receipt of pleadings from the other parties. 2. That witness who have testified be recalled for purposes of cross examination by the interested parties **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY 2026.** **HON. JUSTICE C.K. NZILI** **JUDGE** **Delivered In the Presence of:** Court Assistant: Julius