Ntiyiani & another v Meritei; Kalicha (Interested Party) (Environment and Land Appeal E006 of 2024) [2026] KEELC 2979 (KLR) (15 May 2026) (Ruling)

Ntiyiani & another v Meritei; Kalicha (Interested Party) (Environment and Land Appeal E006 of 2024) [2026] KEELC 2979 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 2979 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Environment and Land Appeal E006 of 2024 MD Mwangi, J May 15, 2026 Between Musenyi ole Ntiyiani 1st Appellant Koin Ene Meritei 2nd Appellant and George Ndula Meritei Respondent and Abdirizack Guracha Kalicha Interested Party Ruling (In respect of the application dated 31st October 2025 brought under the provisions of Articles 50 and 159 of the Constitution of Kenya, Sections 1A, 1B, and 3A of the Civil Procedure Act, as well as Order 1 Rule 10(2) of the Civil Procedure Rules) Introduction 1.Before this Honourable Court for determination is the Notice of Motion dated 31st October 2025, brought by the Applicant, Abdirizack Guracha Kalicha. The Application is filed under the provisions of Articles 50 and 159 of the Constitution of Kenya, Sections 1A, 1B, and 3A of the Civil Procedure Act, as well as Order 1 Rule 10(2) of the Civil Procedure Rules. Through the said Motion, the Applicant seeks the following orders:a.That Abdirizack Guracha Kalicha be enjoined in this appeal as an Interested Party.b.That the costs of this Application be in the cause. 2.The Application is premised on the grounds set out on the face of the Motion and is further supported by the Affidavit of the Applicant sworn on the 31st of October 2025, alongside the annexures attached thereto. 3.It is the Applicant’s case that on the 9th of December 2024, he purchased the suit property, known as L.R. No. Kajiado/mailua/560, from the Respondent, George Ndula Meritei, for a consideration of Kenya Shillings Eight Million, Five Hundred Thousand (Kshs. 8,500,000). The Applicant asserts that the property is currently registered in his favour, granting him a direct proprietary interest in the subject matter of the present appeal. Consequently, he contends that any orders issued herein will directly affect his proprietary rights, and that proceeding to determine the appeal without affording him a hearing would occasion irreparable prejudice and amount to a denial of justice. 4.The Application is vehemently opposed by the Respondent, George Ndula Meritei, through a Replying Affidavit sworn on the 13th of February 2026. The Respondent admits that the lower court in MCELC Case No. 17 of 2017 declared him the lawful owner of the suit property, which precipitated the current appeal by the Appellants. He further acknowledges entering into a Sale Agreement with the Applicant after the delivery of the said judgment. 5.However, the Respondent avers that the Sale Agreement stipulated that the purchase price would be paid in instalments, and that the transfer of the property was to be strictly contingent upon the full settlement of the agreed price. The Respondent alleges that the Applicant defaulted on completing the purchase price. It is the Respondent's contention that he released the transfer documents during the payment of the initial instalment purely on the understanding that they would only be utilized upon final payment, and that the Applicant fraudulently and irregularly caused the suit property to be transferred into his name without the Respondent's knowledge, consent, or authority. Directions by the court 6.The application was canvassed by way of written submissions as directed by the court, the submissions of which have been duly considered in the writing of this ruling. Issues for determination 7.The primary issue for determination is whether the Applicant, Abdirizack Guracha Kalicha, has satisfied the legal threshold to be joined as an Interested Party in this appeal. Analysis and Determination. 8.The application is anchored on the statutory provisions of Order 1 Rule 10(2) of the Civil Procedure Rules, which governs the joinder of parties. The rule states verbatim:“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." 9.The judicial parameters for admitting an interested party have been comprehensively settled by the Supreme Court of Kenya in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others, Supreme Court Petition No. 12 of 2013, [2014] eKLR, where an interested party was defined as follows:“Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause..." 10.The threshold tests for such an application were further elucidated in Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR, where the Supreme Court established the mandatory elements to be proven:“From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements: The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court." 11.This is supplemented by the guiding principles in Kingori v Chege & 3 others [2002] 2 KLR 243, which requires that the applicant be a necessary and proper party, and crucially, that,“His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit." 12.The Applicant's interest arises from a private sale transaction concerning L.R. No. KAJIADO/MAILUA/560, entered into with the Respondent after the trial court's judgment was delivered. The appellate court's mandate is strictly confined to reviewing the correctness of the trial court's decision regarding the original ownership dispute between the Appellants and the Respondent. 13.The Respondent fundamentally disputes the sale agreement, alleging that the Applicant defaulted on payments and fraudulently transferred the title. Allowing the Applicant to join the appeal would introduce collateral contractual disputes that require the production of new evidence, the calling of witnesses, and cross-examination. Such an action offends established appellate procedure. As held by the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2015] KESC 15 (KLR), a court should decline the joinder of an interested party where the applicant seeks to introduce new issues that were not previously before the trial court. 14.The Applicant allegedly purchased the suit property during the pendency of a legal dispute and is, therefore, a purchaser pendente lite whose title is entirely derivative of the Respondent's. The Applicant cannot purport to acquire an independent right or a better title than that of the Respondent, whose ownership is the very subject of this appeal. Should the appeal succeed, the Respondent's title will be defeated, and the Applicant's derivative title will necessarily fall with it. Thus, the Applicant's participation is not required to determine the primary issues in controversy between the original parties. 15.Under the principles established in Muruatetu, an applicant must demonstrate specific prejudice that cannot be addressed otherwise. The Applicant fails this test because the alleged injuries stem purely from a subsequent disputed contractual relationship. The Applicant retains the unabridged right to pursue an independent civil action against the Respondent for breach of contract or the recovery of the purchase price. Denying the joinder does not deny the Applicant justice; it simply necessitates that the Applicant seek redress in the correct legal forum. 16.It is the finding of this Court that the Applicant is a stranger to the original proceedings and neither a proper nor a necessary party to this appeal. The Applicant’s presence is not required to "effectually and completely adjudicate upon and settle all questions involved in the suit" as mandated by Order 1 Rule 10(2) of the Civil Procedure Rules. The application improperly attempts to expand the scope of the appeal by introducing extraneous contractual matters that must be litigated in a separate suit. 17.Accordingly, the Notice of Motion Application dated 31st October 2025 fails to meet the legal threshold for joinder. It is hereby dismissed with costs awarded to the Respondent herein.Ordered accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Mukathe for the RespondentMr. Kimani for the proposed Interested Party/ApplicantN/A by the AppellantsCourt Assistant: AlexM.D. MWANGIJUDGE