https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4490

Ole Koilel & 17 others v Emco Billets and Steel Ltd & another (Land Originating Summons E038 of 2025) [2026] KEELC 4490 (KLR) (14 July 2026) (Ruling) Neutral citation: [2026] KEELC 4490 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Originating Summons E038 of 2025 MN Kullow, J July 14, 2026 Between Musanka Ole Koilel 1st Plaintiff Daniel Nyanchoga Mokaya & 16 others & 16 others 2nd Plaintiff and Emco Billets And Steel Limited Defendant and The Co-Operative Bank Of Kenya Limited Interested Party Ruling Introduction 1.The matter is coming up for determination on the Interested Party’s application 11th February 2026 seeking for the following ordersa.spentb.That Co-operative Bank of Kenya Limited be struck out as an Interested Party in these proceedings.c.That Co-operative bank of Kenya Limited be joined and/or designated as a Defendant in this suit.d.That leave be granted to the Plaintiffs to amend their pleadings within such a time as the court shall direct to reflect the joinder of Co-operative bank of Kenya as the 2nd Defendant.e.That this honourable court be pleased to grant such other or further orders as it may deem fit and just in the circumstances of this case.f.Costs of the application. 2.The application was premised on grounds that the Applicant has a charge registered on the suit property herein LR 12034/3 which property is registered in the Defendant. That the Defendant had secured a loan on the suit property and had defaulted in payments and as such was indebted in the sum of Ksh.5,303,766,569.93/= 3.That the Plaintiffs were seeking declaratory orders on the suit property by way of adverse possession which reliefs directly affect the Applicant who cannot be able to defend his case as an interested party as the rights of the Applicant are distinct from the rights of the Defendant hence this application for joinder. 4.The Plaintiffs in opposing the application filed a replying affidavit sworn by Daniel Nyanchoga Mokaya. He deponed that the cause of action was strictly as against the proprietor of the suit property being the Defendant and not the interested party who held a charge that did not confer ownership. He deponed that the matter being whether the Plaintiffs are entitled to adverse possession orders were strictly matters that the court could adjudicate on without the involvement of the Applicant and further the Plaintiffs as seeking the orders were at the discretion to determine whom they were to sue in this case the Defendant. 5.He further deponed that the conditions for joinder as in order 1 rule 10(2) had not been met by the Applicant. 6.The issues in the application were canvassed by of written submissions. The Applicant/Interested Party submitted by filing submissions dated 16th June 2026 whereas the Plaintiffs filed their submissions dated 24th June 2026. Applicant’s submissions 7.Counsel reiterated the contents in their supporting affidavit and submitted on the following issues Whether the Applicant satisfies the threshold for joinder as a Defendant; 8.He relied on the provisions of Order 1 Rule 10(20 alluding to the fact that it required that all people whose rights are directly affected by the dispute, or whose presence is necessary for the complete and effectual determination of the issues before the Court, should be joined in the proceedings in the appropriate capacity in this case having established they had a charge in their favour over the suit property, then thy had established interests and should be enjoined as a Defendant to effectively ventilate on their rights .Counsel also relied on the case of Tapatayia v Issa & 5 others (Land Case E134 of 2024) [2026] KEELC 2902 (KLR) (15 May 2026) (Ruling), 9.He further submitted that pursuant to Section 38 of the Limitation of Actions the claim of adverse possession was subject to any other entry on the register that had not been extinguished by the act and that the charge was an overriding interest that the suit property ought to be subjected to relying on what was said in the case of In Green Valley Enterprises Limited v Naisianoi Mpeshe & 4 others[2021] KEELC 2709 (KLR), 10.As regards the application for joinder counsel indicated that they had proved their interest in the suit and that they were also a necessary party placing reliance on the court of appeal case of Civicon Limited v Kivuwatt Limited & 2 others [2015] KECA 588 (KLR).Counsel further submitted that the Applicant is a necessary party as they will be able to produce documents such as title, subdivision, consent and replacement-security evidence necessary for that inquiry and Without the Applicant as a Defendant, the Court risks determining continuity of possession and cancellation of the registered charge over L.R. No. 12034/3 without the full information and status of the property Plaintiff’s submissions 11.The Plaintiffs submitted reiterating the contents in their replying affidavit. That the Applicant had failed to demonstrate how the current matter would not be resolved without his participation and failure to do so did not make them a necessary party relying on the case of Pravin Bowry v John Ward & Another [2015] eKLR. 12.That the Applicant's interest is purely derivative of the Defendant's title and the charge did not confer ownership of land but merely creates a security interest and as such the Applicant's rights stand fell with the Defendant. Analysis and determination 13.I have considered the application, the central issue for determination arising therein is whether a case has been made for the Applicant to be enjoined as Defendant in this matter 14.Order 1 Rules 1 to 14, deals with joinder of parties to suits, including misjoinder and non-joinder of parties. These rules allow the court to add or strike out, or substitute parties to properly settle the dispute. Under Order 1 Rule 10(2), the powers of the Court are wide and unlimited. Joinder of parties is meant to ensure all relevant parties are present to achieve a fair, just, complete, and eefficient resolution to the dispute. It aids in the inclusion of parties whose absence might prevent complete relief or whose interests will be harmed. In the case of Lucy Nungari Ngigi & 128 Others v National Bank of Kenya Limited & Another (2015) eKLR, the court explained as follows:- “(2)… In law, joinder should be permitted of all parties in whom any right to relief in respect of or 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 if such persons brought separate suits, any common question of law of fact would arise. See also Order 7 Rule 9 of the Civil Procedure Rule. The court may even in its own motion add a party to the suit if such party is necessary for the determination of the real matter in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, joinder of parties is permitted by law and it can be done at any stage of the proceedings. But, joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the parties being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other words joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from existing cause of action or the relief. The determining factor in joinder of parties is That a common question of fact or law would arise between the existing and the intended parties. This is the test I shall apply in this case.” 15.Guided by the above provisions of the law and the case law relied upon, I find hold as follows; It is not in dispute that the Defendant is the registered owner of the suit property LR No 12034/3(original number 12034 Mowlem Area Nairobi). It is also not in dispute that the Applicant has a registered charge over the suit property for failure of the Defendant to pay the loan advanced to it. In light of the above, question that begs is whether the existence of the charge registered against a title of the suit land would defeat the Plaintiffs’ claim on adverse possession or stop time from running in favor of the Plaintiffs. 16.In Benson Mukuwa Wachira v Assumption Sisters of Nairobi Registered Trustees(2016) eKLR, the Court of Appeal cited with approval the finding by the High Court in Kipkoech Arap Langat & Another v Kipngeno Arap Laboso, Kericho HCCC No.124 of 2004 (0.S.) where the court stated as follows: “Where a proprietor charges or mortgages land occupied by a trespasser adversely to the title of the proprietor, regardless of whether the trespasser is aware of such transaction, the act of charging or mortgaging the land does not interrupt time from running in adverse possession. Time for adverse possession continues to run. Such adverse possession is an overriding interest acquired or in the process of being acquired by virtue of Section 38 of the Limitations of Actions Act. It must be noted that where the proprietor transfers land, the act of transfer does not interrupt the running of time in adverse possession. In both cases of transfer and mortgage of land on which a trespasser is in adverse possession, the running of time in adverse possession is not interrupted. As adverse possession is an overriding interest (acquired or in the process of being acquired) under Section 30 (f) of the Registered Land Act, Cap 300, the mortgagee or transferee takes subject to such overriding interest.” 17.It is therefore clear that even though a Charge was registered against the title of the suit land by the Interested Party and which charge still exists to date as evidenced in the replying affidavit, the same does not affect the Plaintiffs’ interests over the suit parcel acquired by virtue of adverse possession. Applying the above legal principles to the instant case, I find that the Applicant has not demonstrated interest in the claim and will not be a necessary party that the court will need in order to determine whether the Plaintiffs have acquired the suit property or not thereby failing to meet the conditions for joinder as in orderFinal dispositionConsequently, I make the following orders;i.The application dated 11th February 2026 lacks merit and is hereby dismissedii.Costs shall be on the Applicant.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 14TH DAY OF JULY 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Ms. Wanjohi for the PlaintiffMr. Omuga for the DefendantMr. Githua for the Interested PartyMs. Mwangi Court Assistant