https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3006

Ngatiri v Sunshine Construction Company Limited & another (Environment and Land Case E162 of 2024) [2026] KEELC 3006 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 3006 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E162 of 2024 MN Kullow, J May 15, 2026 Between George Ngatiri Plaintiff and Sunshine Construction Company Limited Defendant and I&M Bank Limited Interested Party Ruling The Application 1.This application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya, Order 40 Rules 1 and 3, Order 1 Rule 10(2), Order 8 Rule 3(1) and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and all other enabling provisions of the law. The Applicant seeks, inter alia, orders that I&M Bank Limited be enjoined as an Interested Party, a temporary injunction restraining the intended sale of L. R No. 70207 now Nairobi Block 4/210, leave to amend the Plaint and witness statements, and leave to file further documents. 2.The application is grounded on the grounds set out on the face thereof and the Supporting Affidavit of GEORGE NGATIRI. The Applicant avers that he purchased the suit property known as L. R No. 70207 now Nairobi Block 4/210 from the Respondent, Sunshine Construction Company Ltd, in the year 2003 on a willing buyer willing seller basis. 3.He avers that upon payment of the purchase price, he took possession of the property, developed the same extensively and has since utilized it as his matrimonial home, notwithstanding that the property has never been formally transferred into his name. 4.The Applicant further avers that upon discovering that the Proposed Interested Party, I & M Bank Limited, intended to exercise its statutory power of sale over the suit property, he instituted Commercial Suit No. HCCCOMM/E788/2024 seeking injunctive relief. However, on 27th May 2025, the Commercial Court dismissed the said application for temporary injunction, thereby paving way for the Proposed Interested Party to proceed with the realization of its security. The Applicant states that following the said ruling, the Proposed Interested Party, through Watts Auctioneers, proceeded to advertise the suit property for sale by public auction scheduled for 26th June 2025. 5.The Applicant contends that unless this Honourable Court intervenes and grants the orders sought, the suit property shall be sold and transferred to third parties, thereby rendering the present suit nugatory and occasioning him irreparable loss and prejudice incapable of compensation by way of damages. He further avers that although this Court had previously issued injunctive orders against the Defendant, the same do not bind the Proposed Interested Party since it was not a party to the proceedings at the material time, hence the necessity of joinder and amendment of pleadings to enable the Court effectually and completely adjudicate upon all issues in controversy. The Response 6.Despite service of the application and hearing notices upon all parties, only the Proposed Interested Party, I&M Bank Limited, opposed the application and filed a Replying Affidavit sworn by Andrew Muchina, a Senior Manager in the Legal Department of the Bank. The Defendant/Respondent, Sunshine Construction Company Limited, did not file any response to the application nor participate in the proceedings despite being duly served. 7.In the said Replying Affidavit, the Proposed Interested Party avers that it lawfully advanced financial facilities to Blitz Logistics Limited pursuant to Letters of Offer dated 11th August 2023 and 18th August 2023, which facilities were secured by, inter alia, a Legal Charge over Nairobi Block 4/210 registered in the name of the Defendant/Respondent, Sunshine Construction Company Limited. The Proposed Interested Party further avers that prior to registration of the Charge, it conducted due diligence and official searches which confirmed that the suit property was registered in the name of the Defendant and was free from encumbrances. 8.The Proposed Interested Party further states that following default in repayment by the borrower, it issued the requisite statutory notices under the Land Act and thereafter instructed auctioneers to commence realization of the security. It contends that the present application is an attempt to restrain the lawful exercise of its statutory power of sale and that the issues raised herein had already been litigated and determined in HCCCOMM/E788/2024 – George Ngatiri Vs I & M Bank Limited & Sunshine Construction Company Limited, thereby rendering the present proceedings res judicata. 9.The Proposed Interested Party additionally raises a preliminary issue on jurisdiction and contends that this Honourable Court lacks jurisdiction to determine disputes relating to legal charges and realization of securities, arguing that such matters fall within the jurisdiction of the High Court under Article 165 of the Constitution. It therefore urges the Court to dismiss the application with costs on grounds that the Applicant has failed to satisfy the threshold for grant of injunctive orders and that the application constitutes an abuse of the court process. Supplementary Affidavit 10.In response to the Replying Affidavit filed by the Proposed Interested Party, the Applicant filed a Supplementary Affidavit wherein he avers that the joinder of I & M Bank Limited is necessary because the title in dispute between himself and the Defendant is the same title that was offered as security to the Bank, and therefore any determination made by this Honourable Court regarding ownership of L. R No. 70207 now Nairobi Block 4/210 will directly affect the Bank’s interest. 11.The Applicant further avers that, issues relating to the legality and enforceability of the charge are already the subject of Milimani HCCCOMM/E788/2024 – George Ngatiri vs I&M Bank Limited & Sunshine Construction Company Limited, where he challenges the validity of the charge on grounds that the persons who executed the charge documents on behalf of the Defendant were allegedly not lawful directors of the company. 12.The Applicant reiterates that the present suit does not seek to challenge the charge but rather seeks a determination on the rightful ownership of the suit property based on the sale agreement dated 15th April 2003 and his long possession thereof. 13.He avers that the question before this Court squarely concerns ownership, use and title to land, matters which fall within the jurisdiction of the Environment and Land Court. The Applicant further states that the injunctive prayers earlier sought against the Proposed Interested Party were withdrawn and that the only prayer presently being pursued is for the joinder of the Bank so that it may participate in proceedings whose outcome is likely to affect its interest in the charged property. Issue for Determination 14.The application was canvassed by way of written submissions, which this Honourable Court has carefully considered alongside the application, the affidavits filed by the respective parties and the authorities relied upon. Having reviewed the pleadings and submissions on record, the Court is of the considered view that the issue arising for determination is as follows: -a.Whether the Proposed Interested Party, I&M Bank Limited, ought to be enjoined in these proceedings as an Interested Party; Analysis 15.The applicable law on joinder of parties is found under Order 1 Rule 10(2) of the Civil Procedure Rules, which provides that: “The Court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant or whose presence before the court may be necessary in order to enable the court to effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.” 16.The principles governing joinder of parties were further articulated in Meme Vs Republic [2004] eKLR, where the Court held that joinder of parties is permissible:“(i)Where the presence of the party will result in the complete settlement of all the questions involved in the proceedings;(ii)Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law; and(iii)Where the joinder will prevent a likely course of proliferated litigation.” 17.Similarly, in J.M.K Vs M.W.K & Another [2015] eKLR, the Court of Appeal emphasized that the power of the Court to order joinder may be exercised at any stage of the proceedings so long as the suit has not been finally determined. The Court cited with approval the decision in Tang Gas Distributors Ltd Vs Said & Others [2014] EA 448, where it was held that joinder may be effected before trial, during trial, after judgment and even at the appellate stage, provided the proceedings have not been conclusively disposed of. 18.In this instance, it is not disputed that the suit property known as LR No. 70207 now Nairobi Block 4/210 is presently charged to the Proposed Interested Party, I & M Bank Limited, as security for financial facilities advanced to Blitz Logistics Limited. It is further evident from the material placed before the Court that the Proposed Interested Party has already commenced the process of exercising its statutory power of sale over the suit property. The Applicant, on the other hand, claims ownership of the suit property by virtue of a sale agreement entered into in the year 2003 and contends that the Defendant had no lawful capacity to subsequently charge the property to the Bank. 19.The Court has also considered the Applicant’s averments in the Supplementary Affidavit that the present proceedings are principally intended to determine the rightful ownership of the suit property and not the legality of the charge, which issue is already pending determination before the Commercial Court in HCCCOMM/E788/2024. Nonetheless, the Court is persuaded that any determination touching on the ownership, title and proprietary interest over the suit property will directly affect the rights and interests of the Proposed Interested Party as the chargee thereof. 20.In the circumstances, this Court is satisfied that the presence of the Proposed Interested Party is necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit. Further, the joinder of the Proposed Interested Party will safeguard its interests and forestall multiplicity of proceedings over the same subject matter. Accordingly, the Court finds merit in the prayer for joinder and hereby allows the joinder of I & M Bank Limited as an Interested Party in these proceedings. Final Disposition 21.In the end, the Court finds merit in the Notice of Motion dated 10th June 2025 to the extent of the prayer for joinder. Consequently, the application is hereby allowed in the following terms: -a.I & M Bank Limited is hereby enjoined in these proceedings as an Interested Party.b.The Plaintiff/Applicant is granted leave to amend the Plaint, witness statements and accompanying documents within fourteen (14) days from the date hereof.c.The Interested Party shall thereafter be at liberty to file and serve its response to the amended pleadings within fourteen (14) days of service.d.Costs of the application shall abide the outcome of the main suit.It is so Ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 15TH DAY OF MAY, 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Onyiego for the PlaintiffN/A for DefendantsMr. Gatabata for the Proposed Interest PartyPhilomena W. Court Assistant