https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/134

Mwania v Kilonzi & another (Environment and Land Case E002 of 2026) [2026] KEMC 134 (KLR) (5 June 2026) (Ruling) Neutral citation: [2026] KEMC 134 (KLR) Republic of Kenya In the Makindu Law Courts Environment and Land Case E002 of 2026 YA Shikanda, SPM June 5, 2026 Between Peninah Mwende Mwania Plaintiff and Felistus Muli Kilonzi Defendant and Onesmus Maitha Mutuku Proposed Interested Party Ruling 1.Before me is an application dated 9/2/2026 filed by the proposed interested party herein, Onesmus Maitha Mutuku (hereinafter referred to as the applicant). The application is brought pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 rule 10(2) and Order 8 rules 3 and 5 of the Civil Procedure Rules. The same seeks the following main orders:1.That this Honourable court be pleased to issue orders enjoining the interested party as a substantive party to the proceedings herein and the draft response to the plaint and the supporting affidavit herewith be deemed to be duly filed upon payment of the requisite fees;2.That the costs be in the cause. 2.The application is supported by the affidavit sworn by the applicant and is premised on the following summarized grounds:i.The plaintiff claims to have purchased the parcel of land in issue in her own name using her own funds whereas in fact, she was an agent of the interested party;ii.The plaintiff violated and/or breached the terms of express or implied agency agreement between herself and the interested party;iii.The plaintiff filed the present suit to pursue monies which never belonged to her and/or enforce a contract of purchase of land in which she never paid any consideration and has no actionable interest;iv.Unless the interested party is joined in these proceedings, he stands to lose Ksh. 2 Million, agency fees amounting to Ksh. 160,000/=, costs towards tracing, apprehending and arraigning the plaintiff in court amounting to Ksh. 175,100/= as well as costs and interest for this suit. 3.In the affidavit in support of the application, the applicant gave a history of his claim against the plaintiff. The gist of the history was that he wanted to purchase property and met the plaintiff who presented herself as fully conversant with the property market in Makindu. That the plaintiff offered to act as a commission agent for the applicant. The applicant deposed that he paid the plaintiff agency fees amounting to Ksh. 160,000/= and permitted the plaintiff to engage the owner of the property and conclude the purchase. That without the knowledge and consent of the applicant, the plaintiff executed an agreement in her own name. 4.The applicant deposed that he paid to the plaintiff Ksh. 2 Million towards the purchase of the property and an additional Ksh. 9,000/= being transaction fees. The applicant stated that the plaintiff was subsequently arrested and charged with the offence of obtaining money by false pretences vide Makindu Criminal case No. E494 of 2026. The applicant attached copies of documents in support of his claim. The Plaintiff's Response 5.The plaintiff did not file any response to the application and on 28/4/2026 when the application came up for hearing, counsel for the plaintiff indicated that they had no objection to the applicant being joined to these proceedings. Response By The Defendant 6.At the time of filing the application, the defendant and interested party were being represented by the same firm of Advocates. It is the said firm that filed the application. However, when the application came up for hearing, the interested party had changed advocates. Counsel for the defendant, who had filed the application, indicated that he had no objection to the same being allowed. Main Issues For Determination 7.In my opinion, the main issues for determination are as follows:i.Whether the applicant has given sufficient grounds to warrant the granting of the orders sought;ii.Whether the applicant should be joined to this suit as a substantive party;iii.Whether the response to the plaint and counter-claim by the applicant should be deemed as duly filed;iv.Who should bear costs of the application?v.What other orders can the court make? Analysis And Determination 8.I have considered the application and given due regard to the applicable law. Section 1A of the Civil Procedure Act provides as follows:“(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court". 9.Section 1B provides thus:“(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims— (a) the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology". 10.Section 3A provides:“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court". 11.Articles 159(2)(b) and (d) of the Constitution provides that in exercising judicial authority, the courts and tribunals shall be guided by the principle that justice shall be administered without undue regard to procedural technicalities and justice shall not be delayed. 12.The main provision upon which the application is premised is Order 1 rule 10(2) of the Civil Procedure Rules which provides:“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.” (Emphasis supplied) 13.The Blacks’s Law Dictionary, 10th edition at page 1298 defines the phrase “interested party” as:“A party who has a recognizable stake (and therefore standing) in a matter.”The same dictionary at the same page defines the phrase “necessary party” as:“A party who, being closely connected to a lawsuit, should be included in the case if feasible, but whose absence will not require dismissal of the proceedings.” 14.In my view, the question that is germane to these proceedings is whether the applicant has established that he has a recognizable stake in the proceedings and whether he is closely connected to the suit so as to be included as a party for the court to be able to effectually and completely adjudicate upon and settle all questions involved in the suit. There is a litany of authorities on the subject but I will only highlight a few from the apex court. In the authority of Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties) [2016] KESC 12 (KLR), the Supreme Court held that a party seeking to be joined as an interested party must make a formal application and meet the following conditions:1.The application would have to disclose the personal interest or stake that the party has in the matter. That interest has to be clearly identifiable and proximate enough to be distinguished from anything that was merely peripheral;2.The prejudice that would be suffered by the non-joinder of the intended interested party has to be demonstrated to the court's satisfaction. The prejudice would have to be one that is not remote but one that is clearly outlined;3.The intended submissions and their relevance has to be set out in the application. The party seeking to be joined has to demonstrate that the submissions are not merely a replication of what other parties were going to submit to the court. 15.The apex court further gave the following directions:a.An interested party would join proceedings on terms that the overriding interest or stake is always that of the primary or principal parties before the court;b.Interested parties are only remotely or indirectly affected but the primary impact is on the parties who moved the court first;c.Whether or not interested parties are joined to a suit, the issues to be determined by the court would still be the issues presented by the principal parties or as framed by the court from the pleadings and submissions of the principal parties;d.An interested party cannot frame its own fresh issues or introduce new issues for determination by the court. The stake that the interested party is required to have in the matter cannot form an altogether new issue introduced to the court. 16.The above principles were reiterated by the Supreme Court in the authority of Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others [2023] KESC 39 (KLR). Being guided by the Supreme Court authorities, I will proceed to determine the first key question. The contention by the applicant is that the plaintiff is claiming money from the defendant yet the money belonged to the applicant. The applicant has a claim against the plaintiff and wishes the same to be canvassed in these proceedings. I would agree that the applicant has a recognizable stake in the suit herein or claim by the plaintiff against the defendant. The submissions by the applicant raise a pertinent question as to which party the money in issue belongs to. 17.The applicant wishes to be joined as a substantive party. The substantive parties to a civil suit are the plaintiff and defendant. An interested party cannot be a substantive party. An interested party's role is generally limited to protecting an identifiable interest in the subject matter of the litigation. If the person seeks substantive relief against the plaintiff, joinder as an interested party is usually inappropriate. The Supreme Court in the case of Muruatetu (supra) held that whether or not interested parties are joined to a suit, the issues to be determined by the court would still be the issues presented by the principal parties or as framed by the court from the pleadings and submissions of the principal parties. From the application by the applicant and what he called the response to the plaint, it would appear that the applicant has a substantive claim against the plaintiff which would raise serious issues for determination by the court as between him and the plaintiff. In my view, the applicant is beyond being an interested party. He is a party with a substantive claim against the plaintiff. 18.As guided by the Supreme Court, an interested party cannot frame its own fresh issues or introduce new issues for determination by the court. The stake that the interested party is required to have in the matter cannot form an altogether new issue introduced to the court. The applicant herein seems to be introducing a new and separate cause of action which he wishes to prosecute against the plaintiff. He seeks specific remedies as against the plaintiff. I agree that the applicant’s presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. 19.The million dollar question is, in what capacity should the applicant be joined to these proceedings? I have already indicated that the applicant is beyond being joined as an interested party. The plaintiff has no claim against the applicant. This implies that the applicant cannot be joined as a defendant. In the draft response to the plaint, the applicant has purported to respond to the allegations in the plaint yet they do not relate to him. One cannot answer a claim that is not against them. In the same response, the applicant has incorporated a counter-claim against the plaintiff. A counterclaim is a claim made in response to an initial claim, essentially serving as a defensive counterattack. It challenges a claim by asserting an opposing position or bringing an entirely new complaint against the opposing party. 20.In my view, a counter-claim cannot be raised by a person who has not been sued in the suit. A counterclaim is ordinarily a claim brought by a defendant against a plaintiff. The provisions of Order 7 of the Civil Procedure Rules are clear on that. A person who is not a party to the suit and against whom the plaintiff has not asserted any claim cannot, as of right, file a counterclaim against the plaintiff. The difficulty is procedural; a counterclaim is part of a defence. If a person has not been sued, there is no claim for him to defend and therefore no foundation upon which to lodge a counterclaim. 21.The draft pleadings filed by the applicant and sought to be admitted are alien to the law. There is nothing like a “Response to the plaint” as far as civil procedure is concerned. Section 2 of the Civil Procedure Act defines the term pleading as:……includes a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant.” 22.As such, the applicant cannot file a counter-claim against the plaintiff unless and until he is joined as a co-defendant. 23.I have already observed that the presence of the applicant may be necessary for the court to effectually and completely adjudicate upon and settle all questions involved as between the parties. The subject matter of the suit directly affects the applicant’s rights. Although the plaintiff has not expressly sought any relief against the applicant, any determination of ownership of the money in issue would affect the applicant’s rights. The applicant has also been named in the statement of defence and counter-claim filed by the defendant herein. I have perused the documents annexed to the affidavit in support of the application. In particular, there is a copy of an agreement dated 6/1/2025 made between the defendant and the applicant. The said agreement purports to cancel or revoke the agreement dated 31/10/2025 made between the plaintiff and the defendant. 24.The agreement dated 31/10/2025 is the basis for the plaintiff’s claim against the defendant. If the same is revoked without the involvement of the plaintiff, her rights would be affected. The two agreements are linked to the subject matter of this suit. In my view, the best procedure would be to join the applicant as a 2nd defendant and direct the plaintiff to amend her plaint so as to incorporate her claim against the applicant. This will require the applicant to serve the plaintiff with all his claim supporting documents. Once the plaint is amended, the applicant may then file his defence and counter-claim. Disposition 25.In view of the foregoing, I allow the application dated 9/2/2026 in the following terms:a.The applicant is hereby joined to this suit as a 2nd defendant;b.The prayer for admitting the response to the plaint and counter-claim as duly filed is dismissed;c.The applicant to serve the plaintiff with copies of all his supporting documents within seven (7) days from today;d.Upon service, the plaintiff to file and serve an amended plaint within 14 days;e.The defendant shall have 14 days to file and serve an amended defence and counter-claim, if necessary whereas the applicant shall have 14 days to file and serve his defence and counter-claim;f.Thereafter, the plaintiff will have 14 days to file a reply to defence and defence to the counter-claims by the defendants;g.The costs of the application shall be in the cause. 26.Before concluding the ruling, I have had occasion to peruse the pleadings and wondered whether the suit is properly within the realm of land and environment. According to section 13(2) of the Environment and Land Court Act, the jurisdiction of the court is to hear and determine disputes:a.relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.relating to compulsory acquisition of land;c.relating to land administration and management;d.relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.any other dispute relating to environment and land. 27.The suit herein does not relate to any of the above claims. It is basically a suit based on breach of contract. In as much as the agreements involved transactions over land, the reliefs claimed have nothing to do with environment and land. The subject matter of the dispute is not land but money. Even the reliefs sought by the plaintiff have nothing to do with any interest in land. My view is that the suit ought not to have been filed in the environment and land court. It should be a civil commercial claim. The plaintiff may consider withdrawing the suit and filing it in the proper forum. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 5TH DAY OF JUNE, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.