https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5282

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **ELC CASE NO. E024 OF 2023** **RANDOLPH M. TINDIIKA ……………………………………. PLAINTIFF** * **VERSUS –** **KHADIJA SALIM MWACHARO ……………………… 1ST DEFENDANT** **MOMO SALIM JUMA …………………………………… 2ND DEFENDANT** **ASINA MOHAMED HAMISI …………………………… 3RD DEFENDANT** **MWANAKASI MWINYI KOMBO ……………………… 4TH DEFENDANT** **MWALIMU MWINYI KOMBO ………………………… 5TH DEFENDANT** **IMA MOHAMED …………………………………………. 6TH DEFENDANT** **ASINA ALI ABUBAKAR ………………………………… 7TH DEFENDANT** **RAMADHAN SALIM ………………………………….… 8TH DEFENDANT** **MARIAM SAMUEL NDORO ……………………….… 9TH DEFENDANT** **INSPECTOR GENERAL OF POLICE …………….. 10TH DEFENDANT** **ATTORNEY GENERAL …………………………….… 11TH DEFENDANT** **COUNTY/DISTRICT REGISTRAR, KWALE ……. 12TH DEFENDANT** **AND** **IBRAHIM RAMADHAN MCHECHEMO … 1ST INTERESTED PARTY** **MWINYIHAJI HASSAN MAKENZI ……….. 2ND INTERESTED PARTY** **SALIMU MWINYIKOMBO ………………..… 3RD INTERESTED PARTY** **HAMISI HAMADI MWADENDE ………….. 4TH INTERESTED PARTY** **BINT OMAR IDDI CHUMA …………………. 5TH INTERESTED PARTY** **MGENI SHAFI ………………………………… 6TH INTERESTED PARTY** **MOHAMMED SWALEHE DENDE ………… 7TH INTERESTED PARTY** **NGOZI BAKARI MOHAMED ………………. 8TH INTERESTED PARTY** **MOHAMED HASSAN MKONDO ………….. 9TH INTERESTED PARTY** **SWALEHE SHAFI DENDE ……………….. 10TH INTERESTED PARTY** **HASSAN ALI MWATENDO ……………….. 11TH INTERESTED PARTY** **MUSA OMARI ROFIJI …………………….. 12TH INTERESTED PARTY** **SWALEH ATHUMAN DENDE ……………. 13TH INTERESTED PARTY** **OMARI BAKARI KINGABWI …………… 14TH INTERESTED PARTY** **JUMA MOHAMED LIPPI …………………. 15TH INTERESTED PARTY** **RULING** 1. **Introduction** 2. This Honourable Court was called to make a determination unto the Notice of Motion application dated 13th February, 2026 filed by the 1st to 15th Interested Parties herein (Hereinafter referred to as "The Applicants"). The application was brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Order 1 Rule 10 (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 3. Upon service, the application was opposed by the Plaintiff. This Court will consider the application, the opposition thereto and the rival written submissions by the parties in seriatim hereinbelow. 4. **The Notice of Motion Application dated 13th February, 2026 by the 1st to 15th Interested Parties.** 5. The Applicants sought for the following orders:- 6. ***That this Court be pleased to enjoin Ibrahim Ramadhan Mchechemo, Mwinyihaji Hassan Makenzi, Salimu Mwinyikombo, Hamisi Hamadi Mwadende, Bint Omar Iddi Chuma, Mgeni Shafi, Mohammed Swalehe Dende, Ngozi Bakari Mohamed, Mohamed Hassan Mkondo, Swalehe Shafi Dende, Hassan Ali Mwatendo, Musa Omari Rofiji, Swaleh Athuman Dende, Omari Bakari Kingabwi and Juma Mohamed Lippi as Interested Parties herein; and*** 7. ***That costs of this application be provided for.*** 8. The application is premised on the grounds, testimonial facts and the averments made out under the seven (7) Paragraphed Supporting Affidavit sworn on 13th February, 2026 by MR. MOHAMMED SWALEHE DENDE, together with annextures marked as “MSD” annexed hereto. He averred as follows that:- 9. He was the 7th Interested Party conversant with the matters whereby he deposed the affidavit with the authority of his co-Applicants as evidenced by the Authority to Plead annexed thereto and marked as "MSD-1". 10. In summary, the Applicants contended that they, together with their families, were in actual occupation and possession of the suit property, and annexed photographs marked as "MSD - 2" demonstrating homesteads of some of the families and the cultivation and use of the suit property. 11. By virtue of their open occupation and possession of the suit property, they had a stake in these proceedings even though they were not parties to the cause ab initio. 12. They had a demonstrable interest in the subject matter thereof. 13. Further, would be affected by the decision of this Honorable Court when it was made, either way, and that their interest would not be well articulated unless they appear in the proceedings and champion their case. 14. Additionally, the Plaintiff and the Defendants would not suffer any prejudice if they would be joined, as the Court would thereby achieve the ultimate goal of rendering a conclusive determination of the real issues in controversy. 15. The rules of natural justice dictate that all parties had a right to be heard. 16. **The responses to the Application -the Grounds Of opposition dated 4th May, 2026** 17. Upon being served with the application, the Plaintiff opposed it vide the Grounds of Opposition dated 4th May, 2026 brought under the provisions of Order 51 Rule 14 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Section 19 of the Environment and Land Court Act, No. 19 of 2011 and the Articles 50 and 159 of the Constitution of Kenya, 2010, on the following grounds that:- * + - 1. The application was bad in law, grossly misplaced, lacking in merits and otherwise an abuse of the due process of the Court. 2. The Proposed Interested Parties had no interest in the suit property as alleged or at all; 3. The orders sought in the Notice of Motion application could not be granted as sought or at all; 4. The Proposed Interested Parties’ family (ies) had claims against the Matriarchs of the 1st to the 9th Defendants’ families wherein the decisions were made in favour of the former and thus the action to come into the case was a backdoor approach to revive that which was already decided; and 5. The application herein had no basis and thus ought to be forthwith dismissed with costs to the Plaintiff. 18. **Further Affidavit the Applicants** 19. In rejoinder to the said Grounds of Opposition, the Applicants filed a 16 Paragraphed Further Affidavit sworn on 28th May, 2026 by the said Mr. Mohammed Swalehe Dende. He averred as follows that:- * + - 1. He was the Applicant/7th Interested Party herein. He was well conversant with the matters arising herein and had been duly authorized to swear this Affidavit with authority of the other Interested Parties. Annexed hereto and marked as “MSD – 1” was a copy of the Authority to Plead. 2. He had read and understood the contents of the Grounds of Opposition dated 4th May, 2026. 3. He had the nature and intent of it fully explained to him by his Advocates on record and having understood the import thereof, he wish to respond as hereunder. 4. The 1st to 15th Interested Parties together with their families had continuously occupied and possessed and been in actual occupation of the suit property since the year 1960. Their occupation had at all material times been open, notorious, exclusive to the exclusion of the registered proprietors and their successors, peaceful, continuous for a period exceeding twelve and adverse to the title of the registered proprietors. 5. The particulars of their occupation include permanent dwellings, cultivation and farming, grazing of livestock, boundaries and demarcation and the ,Chief, Assistant Chief, elders and neighbours of Ng'ombeni had at all times recognised their families as the actual occupiers of the suit property. 6. The 2nd, 4th, 10th and 7th Interested Parties together with 11 others had previously instituted ELC No. 6 of 2015 (OS) at the Environment and Land Court at Mombasa in which they had sued Mama Hasina Mohamed, Kibibi M Khamis, Fatuma Mwinyi Mwakutema, Amina Salimu Mwacharo and Rukia Salimu Mwacharo (all deceased) as the Defendants. 7. In furtherance to the above and contrary to the Plaintiff's assertion at Paragraph 4 of the Grounds of Opposition, the suit was not determined on its merits. 8. He verily believe to be true that the Ruling dated 22nd April, 2020 stated that the order to dismiss the suit for want of prosecution was set aside and substituted with the order that this suit had abated under the provisions of Order 24 Rule 4 of the Civil Procedure Rules, 2010 because all the registered proprietors had died before the date on which the Notice to Show Cause came up for hearing. Annexed hereto was a copy of the Ruling dated 22nd April, 2020. 9. Additionally, he had been advised by his Advocates on record whose advice he verily believe to be true that abatement was a procedural conclusion arising from the death of parties. 10. Abatement of the Mombasa Suit was not a determination of the substantive doctrine of adverse possession. Whether the interested parties had been in adverse possession for the requisite period was never investigated, heard, or pronounced upon by the learned Judge in that prior suit. 11. He verily believe to be true that the present proceedings are in any event materially different to wit, the registered proprietor against whom relief is sought was now the Plaintiff not the deceased matriarchs whose estates were sued in year 2015, the cause of action arose out of, and was brought against the Plaintiff who purchased the suit property and some of the Interested Parties were not parties to ELC No. 6 of 2015 and whose own occupation was independently asserted. 12. He verily believe to be true that the Plaintiff claims to had acquired Kwale/Ng'ombeni/ 1104 by way of an agreement said to have been executed in or about the year 2014 with the personal representatives of the deceased matriarchs. The Plaintiff represented the 2nd and 5th Respondents in ELC No. 6 of 2015 and therefore had direct and actual knowledge that the suit property was under a long-standing adverse possession claim by his fellow Interested Parties and their families. 13. He could not now be heard to assert that he was a bona fide purchaser without notice of their overriding interest in the land. 14. Without prejudice to the above, he verily believe to be true that the validity of the sale agreement was the subject of dispute between the Plaintiff and the 1st to 9th Defendants, including allegations of forgery and a live investigation by the Directorate of Criminal Investigations, as the papers in this very suit demonstrate. Annexed hereto and marked as “MSD – 3” was a copy of the Ruling dated 22nd October, 2024. 15. He had been advised by his Advocates on record whose advice he verily believe to be true that where an Applicant deposes to facts in a Supporting Affidavit and the Respondent elected to file only Grounds of Opposition without controverting those facts sworn evidence, the factual averments stood admitted. 16. The factual averments in the Supporting Affidavit dated 13th February, 2026 had not been controverted. Likewise, the alleged Grounds of Opposition dated 4th May, 2026 was not points of law but facts which could not stand because they were not deposed by way of affidavit as required. 17. He verily believe to be true that the Application dated 13th February, 2026 was therefore not opposed on the basis of any grounds of law or facts because the Plaintiff and the Defendants had not denied that they were in occupation and possession of the suit property which ought to had been controverted vide a Replying Affidavit. 18. He reiterated that the Mombasa suit was not determined on its merits because abatement addresses the legal status of the parties rather than the facts of the dispute and Paragraph 4 of the Grounds of Opposition was unfounded and moreover, the parties and the cause of action was materially different. 19. He verily believe to be true that the Interested Parties had an immediate, direct and substantial interest in the parcel number Kwale/Ng'ombeni/1104, which interest could not be properly determined in this suit unless they were joined as parties. 20. Without such joinder, this Honourable Court could not effectually and completely adjudicate upon the controversies surrounding the suit property and any orders issued would be made in their absence and to their prejudice 21. It was therefore in the interests of justice that this Honourable Court allowed the Application dated 13th February, 2025 with costs to the Interested Parties. 22. What was deponed hereinabove was true to the best of his knowledge, information and belief. 20. **Submissions** 21. While all the parties were present in Court, the Court directed that the Notice of Motion application be canvassed by way of written submissions. Pursuant to that, the Applicants filed their written submissions dated 28th May, 2026 through the Law firm of Messrs. Chimera Kamotho & Company Advocates LLP. 22. By the time of penning down its Ruling, the Honourable Court had not been able to access the Submissions by the Plaintiff from neither the Judiciary CTS Portal nor the ELC registry. Hence, Honourable Court relied on the filed pleadings and deliver its Rulings on its merits accordingly. 23. **The Written Submissions by the 1st to 15th Interested Parties/Applicants.** 24. The Learned Counsel for the Applicants distilled two (2) issues for determination, namely: whether the application was merited; and who should bear the costs of the application. On the first issue, the Learned Counsel submitted that the provision of Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 aimed at the Courts avoiding multiplicity of suits and ensuring the conclusive determination of the real questions in controversy. The Learned Counsel urged the Court to be guided by the case of:- “***Ntiyiani & Another – Versus - Meritei; Kalicha (Interested Party) [2026] KEELC 2979 (KLR)”***, which relied on the decision of the Supreme Court of Kenya in the case of: “***Trusted Society of Human Rights Alliance – Versus - Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR”***, on the definition of an Interested Party, and on the threshold elements set out by the Supreme Court in the case of:- “***Francis Karioki Muruatetu & Another – Versus - Republic & 5 Others [2016] eKLR”***, as supplemented by the guiding principles in the case of: “***Kingori – Versus - Chege & 3 Others [2002] 2 KLR 243”***. 25. The Learned Counsel submitted that the Applicants were in actual occupation and possession of the suit property as depicted by the annexure marked as "MSD - 2" to the Supporting Affidavit, and that the occupation was further evidenced by “***Mombasa ELC No. 6 of 2015 (O.S.)”***, in which some of the Interested Parties had instituted an adverse possession claim against the Defendants’ matriarchs. The Counsel further averred that the Applicants’ actual occupation constitutes an overriding interest under the provision of Section 28 of the Land Registration Act, No. 3 of 2012, which bound any registered proprietor of the suit property, and that any person purchasing the suit property in or after the year 2014, and who carried out due diligence including visiting the suit property, would had seen the Applicants’ open and notorious occupation thereof. Reliance was placed on the Ruling of the Hon. Lady Justice A. E. Dena dated 22nd October, 2024, which noted that the validity of the Plaintiff’s purchase was contested on grounds of forgery of signatures, that criminal proceedings were ongoing, and that these issues could only be ascertained through adducing ***“Viva Voce”*** evidence. 26. The Learned Counsel further asserted that where an Applicant deposed to facts in a supporting affidavit and the Respondent elects to file only Grounds of Opposition without controverting those facts by sworn evidence, the factual averments stood admitted. In support thereof, the Learned Counsel relied on the cases of:- “***Watuthu & 2 Others – Versus - State Department for Housing & 5 Others (Petition E001 of 2025) [2026] KEELC 1234 (KLR) (26 February 2026) (Ruling)”*** and “***Omungala – Versus - Nestle Kenya Limited [2020] eKLR”***. The Learned Counsel opined that the abatement of the Mombasa suit was a procedural conclusion arising from the death of parties and not a determination of the substantive doctrine of claimed land adverse possession, and that the present proceedings was in any event materially different. 27. Thus, in conclusion, the Learned Counsel held that if the Applicants was not enjoined, they would suffer prejudice. As a determination of the dispute between the Plaintiff and the Defendants without their participation would directly determine the fate of the land on which they live with their families, in residences and on farms long occupied, and they would be bound by a result reached without them. 28. On the issue of costs. The Counsel relied on the cases of “***Republic – Versus - Rosemary Wairimu Munene”, “Ex - Parte Applicant Ihururu Dairy Farmers Co - operative Society Limited, Judicial Review No. 6 of 2014”*** and “***Cecilia Karuru Ngayu – Versus - Barclays Bank of Kenya & Another [2016] eKLR”*** on the general principle that costs follow the event, and urged the Court to allow the application with costs to the Applicants. 29. **The Written Submissions by the Plaintiff** 30. **Analysis and Determination** 31. This Honorable Court has keenly considered the Notice of Motion application dated 13th February, 2026, the Supporting and Further Affidavits thereto together with all the annexures thereof, the Grounds of Opposition dated 4th May, 2026, the written submissions by the Applicants, the cited authorities and the relevant provisions of the Constitution of Kenya, 2010 and the law. 32. In order to arrive at a just, fair, reasonable and informed decision, the Court has framed the following three (3) salient issues for its determination. 33. ***Whether the Grounds of Opposition dated 4th May, 2026 filed by the Plaintiff are competent to controvert the factual averments contained in the Supporting and Further Affidavits by the Applicants;*** 34. ***Whether the Notice of Motion application dated 13th February, 2026 by the 1st to 15th Interested Parties/Applicants is merited for being enjoined into these proceedings; and*** 35. ***Who should bear the costs of the application.*** ***ISSUE No. a) Whether the Grounds of Opposition dated 4th May, 2026 filed by the Plaintiff are competent to controvert the factual averments contained in the Supporting and Further Affidavits by the Applicants.*** 1. Prior to embarking on the analysis under this sub – heading, the Honourable Court wishes to extrapolate on the brief background facts of this case herein for ease of reference herein. The Plaintiff instituted this suit against the Defendants over all that piece or parcel of land known as Title Number Kwale/Ng’ombeni/1104 - "the suit property"). The Plaintiff claims to have purchased the suit property in or about the year 2014 from the personal representatives of five deceased matriarchs at a consideration of Kenya Shillings Fifty Seven Million, One Hundred and Twenty Thousand (Kshs. 57,120,000.00) and to be its current registered proprietor. 2. The record further discloses that the validity of the said sale agreement is hotly contested as between the Plaintiff and the 1st to 9th Defendants, including on allegations of forgery of signatures and a pending investigation by the Directorate of Criminal Investigations. Indeed, in the Ruling delivered on 22nd October, 2024 by my sister, the Hon. Lady Justice A. E. Dena, this Honorable Court declined to grant the injunctive and stay orders sought by the Plaintiff and instead issued orders of status quo over the suit property pending the hearing and determination of the suit, upon holding that the emerging issues, key among them the validity of the land sale agreement, could only be ascertained through adducing of ***“Viva Voce”*** evidence at the trial. 3. It is against that backdrop that the Applicants have now approached this Honorable Court seeking to be enjoined into these proceedings as Interested Parties. That is adequate on facts. 4. Now turning to the issues under this sub-heading. First and fore most, the Court wishes to interrogate the mode of opposition adopted by the Plaintiff. It is trite law, under the provision of Order 51 Rule 14 of the Civil Procedure Rules, 2010 provides as follows:- ***Order 51 Rule 14 (1) – Any Respondent who wishes to oppose any application may file any one or a combination of the following documents:*** 1. ***A Notice Preliminary Objection; and/or;*** 2. ***Replying Affidavit; and/or*** 3. ***A Statement of Grounds of Opposition*** ***( 2 ) The said documents in sub – rule ( 1 ) and a list of authorities, if any shall be filed and served on the Applicant not less than three clear days before the date of hearing.*** ***(3). Any Applicant upon whom a Replying Affidavit or Statement of Grounds of Opposition has been served under sub – rule ( 1 ) may with the leave of the Court, file a Supplementary Affidavit.*** ***(4) If a Respondent fails to comply with sub – rule ( 1 ) and ( 2 ) the application may be heard “Ex – Parte”*** 1. Legally speaking, the Grounds of Opposition, being in the nature of a demurrer, ought to raise pure points of law only. They are not a vehicle for contesting facts. The classical exposition of what constitutes a pure point of law was rendered by the Court of Appeal (as it then was) in the celebrated and *“Classicus Locus”* case of:- “***Mukisa Biscuit Manufacturing Co. Limited – Versus - West End Distributors Limited (1969) EA 696”***, where the Learned Judges held “*inter alia”* that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit, and further that a preliminary objection cannot be raised if any fact has to be ascertained. 2. Applying the above legal principle ***“Mutatis Mutandis”*** to Grounds of Opposition, based on the above provision of Order 51 Rule 14 of the Rules, it follows that where a party elects to oppose an application supported by sworn affidavit evidence by way of Grounds of Opposition only, without filing any Replying Affidavit, the factual averments deposed to in the supporting affidavit remain uncontroverted. The Grounds of Opposition cannot serve as a substitute for sworn evidence on contested matters of fact. 3. This position resonates with the holding in the case of:- “***Omungala – Versus - Nestle Kenya Limited [2020] eKLR”***, cited by the Applicants, where the Court held thus:- ***"The claimant never swore any affidavit to oppose the application. It follows that the factual averments by the applicant in the supporting affidavit have not been controverted. Likewise, the alleged grounds of opposition filed on 1.11.2019 are not points of law but facts which cannot stand because they were not deposed by way of affidavit as required. The application is therefore not opposed on the basis of any grounds of law or facts."*** 1. Similarly, in the case of:- “***Watuthu & 2 Others – Versus - State Department for Housing & 5 Others (Petition E001 of 2025) [2026] KEELC 1234 (KLR)”,*** the Court observed that the Grounds of Opposition filed by the Respondents therein had not in any way controverted the facts tabled by the Petitioners. 2. Turning to the instant application, upon a careful scrutiny of the Grounds of Opposition dated 4th May, 2026, the Court finds that Grounds 1, 3 and 6 thereof are mere general conclusions bereft of any legal reasoning. Ground 2 thereof, to the effect that the proposed Interested Parties have no interest in the suit property as alleged or at all, is a contestation of fact, and not a point of law. Likewise, Ground 4 thereof, to the effect that the proposed Interested Parties’ families had claims against the matriarchs of the 1st to 9th Defendants’ families wherein the decisions were made in favour of the former and thus the action is a backdoor approach to revive that which was already decided, is quintessentially a factual assertion which required to be established by way of sworn evidence, annexing the alleged decisions. No such evidence was placed before this Court. 3. To the contrary, and rather paradoxically, it is the Applicants themselves who placed before the Court the Ruling delivered on 22nd April, 2020 by the Hon. Mr. Justice Munyao Sila in Mombasa ELC No. 6 of 2015 (O.S.), from which it is plainly evident that the said suit was never heard nor determined on its merits, but rather marked as having abated under the provisions of Order 24 Rule 4 of the Civil Procedure Rules, 2010 all the Respondents therein having died. The factual substratum of Ground 4 of the Grounds of Opposition is thus not borne out by the record. 4. In the premises, the Court finds and holds that the Grounds of Opposition dated 4th May, 2026, to the extent that they seek to controvert the sworn factual averments of the Applicants on occupation and possession of the suit property, are incompetent for that purpose. The factual averments contained in the Supporting Affidavit sworn on 13th February, 2026 and the Further Affidavit sworn on 28th May, 2026 stand uncontroverted. That notwithstanding, the ultimate burden remains on the Applicants to demonstrate to the satisfaction of this Court that they meet the legal threshold for joinder as Interested Parties, an issue to which the Court now turns to for its determination. ***ISSUE No. a). Whether* *the Notice of Motion application dated 13th February, 2026 by the 1st to 15th Interested Parties/Applicants is merited for being enjoined into these proceedings*** 1. Under this sub–title, the main issue herein is whether this Honourable Court should grant leave to join the 1st to 15th Interested Parties as parties to the proceedings, either as Defendants, Interested Parties, or Amicus Curiae, pursuant to Order 1 Rule 10 of the Civil Procedure Rules, 2010. 2. On the issue of joinder, The Black’s Law Dictionary defines **“Interested Party”** as:- **“A party who has a recognizable stake (and therefore standing) in a matter.”** 1. The stating point on the joinder is Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010, which states as follows:- **“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 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 mine]** 1. This provision empowers the Court, at any stage of the proceedings, to order that the name of any person who ought to have been joined, or whose presence before the Court may be necessary to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit, be added. The discretion is wide but must be exercised judiciously. 2. This statutory discretion is reinforced by the provision of Article 159 (2)(b) and (d) of the Constitution of Kenya, 2010, which obliges courts to ensure justice is not delayed and to administer justice without undue regard to procedural technicalities. Thus, the Constitution elevates substantive justice above rigid adherence to form, ensuring that courts are not constrained by technical omissions when the real issues in controversy demand full participation of all necessary parties. 3. With the passage of time, the High Court has expansively deliberated on this jurisprudence. Hence, this Court will not be re – inventing the wheel. It will proceed to make reference to just but a few of the precedents. To begin with, the case of:- ***“Kingori – Versus - Chege & 3 Others [2002] 2 KLR 243”*** the court provided the following guiding principles for joinder of a party to a suit: 1. ***He must be a necessary party.*** 2. ***He must be a proper party.*** 3. ***In the case of the Defendant there must be a relief flowing from that Defendant to the Plaintiff.*** 4. ***The ultimate order or decree cannot be enforced without his presence in the matter.*** 5. ***His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.*** 4. Similarly, in the case of:- ***“Meme – Versus - Republic, [2004] 1 EA 124”***, the High Court observed that a party could be enjoined in a matter for the reasons that:- * 1. ***Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;*** 2. ***Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;*** 3. ***Joinder to prevent a likely course of proliferated litigation.*** 5. Further, in the case of:- ***“Departed Asians Property Custodian Board – Versus - Jaffer Brothers Limited [1999] 1 EA 55”***, the Court held that:- ***“A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the Plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for the avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”*** 1. Additionally, in the case of:-***“Civicon Limited – Versus - Kivuwatt Limited and 2 Others [2015] eKLR”*** the court observed as follows: ***“Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, or inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit, and the interest need not be the kind that must succeed at the end of the trial.”*** 1. Additionally, the principle was echoed in case of:- ***“Mukira & 2 Others – Versus - County Government of Nyeri [2026] KEELC 2997 (KLR)”***, where the Environment and Land Court reiterated that joinder is justified where the party’s participation is essential to resolve the real issues in controversy and to avoid multiplicity of suits. Also, in the case of:- ***“Lalji Shivji Kerai – Versus - Municipal Council of Eldoret [2014] KEELC 488 (KLR)”***, the Court held that joinder should be allowed if it enables the Court to resolve the dispute comprehensively and avoid piecemeal litigation. 2. Further, in the case of:- ***“Zephir Holdings Limited – Versus - Mimosa Plantations Limited, Jeremiah Maztagaro and Ezekiel Misango Mutisya (2014) eKLR”***, the Court stated that:- ***“A proper party is one who is impleaded in the suit and qualifies the threshold of a Plaintiff or Defendant under Order 1 Rules 1 and 2 respectively, or as a third party or as an Interested Party and whose presence is necessary or relevant for the determination of the real matter in dispute or to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit.”*** 1. Still on this issue, the Supreme Court in the case of:- ***“Communications Commission of Kenya & 4 Others – Versus - Royal Media Services Limited & 7 others (2014) eKLR”*** stated: ***“An Interested Party is one who has a stake in the proceedings, though he or she was not a party to the cause ab initio. He or she is the 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 interests will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. A party could be enjoined in a matter for the reason that;*** * + 1. ***Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;*** 2. ***Joinder to provide protection of the rights of a party who would otherwise the adversely affected in law;*** 3. ***Joinder to prevent a likely course of proliferated litigation.*** 1. On the threshold to be reached by a party seeking joinder, the holding by Muriithi J. in the case of:- ***“Benjamin K Kipkulei – Versus - County Government of Mombasa & Another [2015] eKLR”*** is useful:- ***“….The test for joinder of a party as an interested party is not that the applicant must show a stake or interest that must prevail in the suit, as that is not possible before the full hearing of the matter; the applicant should demonstrate a legal interest that calls for hearing before a decision on the dispute before the court is adjudicated. In common judicial parlance, I would say that the applicant ought to show on ‘an arguable case’ basis that he has an interest recognized in the law and capable of protection….”*** 1. The above principles are supplemented by the guiding considerations enunciated in the case of “***Kingori – Versus - Chege & 3 Others [2002] 2 KLR 243”***, to the effect that the applicant must be a necessary and proper party whose presence is necessary to enable the Court to effectively and completely adjudicate upon and settle all questions involved in the suit. Distilled to their essence, therefore, the applicable considerations are threefold: first, an identifiable and proximate stake or interest in the subject matter of the proceedings; secondly, demonstrable prejudice to be suffered in the event of non-joinder; and thirdly, the relevance and non-replicative character of the case the intended interested party intends to advance. 2. The Court now proceeds to apply the above tripartite test to the circumstances of the instant application. **On the first limb of an identifiable and proximate stake**, the Applicants have deposed, without any contradiction, that they and their families are in actual, open and notorious occupation and possession of the suit property, where they maintain permanent dwellings, carry out cultivation and farming and graze livestock, and that such occupation dates back to the year 1960. The photographs annexed and marked as "MSD - 2" depict homesteads, farmlands under active cultivation with cassava, bananas, pawpaw and other crops, and established trees on the suit property. Further, it is a matter of record that the 2nd , 4th , 7th and 10th Interested Parties, together with others, had previously instituted Mombasa ELC No. 6 of 2015 (O.S.) seeking a declaration that they had acquired title to the suit property by way of adverse possession, which suit abated upon the demise of all the registered proprietors sued therein. In the considered view of this Court, persons in actual physical occupation of the very land whose ownership is the epicentre of the dispute between the Plaintiff and the 1st to 9th Defendants cannot, by any stretch of imagination, be said to be strangers or busybodies to the proceedings. Their asserted interest is neither peripheral nor remote; it is direct, clearly identifiable and proximate. Indeed, without making any determination on the merits thereof at this interlocutory stage, the Court observes that a claim of rights in the process of being acquired under the law relating to limitation of actions is, by dint of the provision of Section 28 (h) of the Land Registration Act, No. 3 of 2012, in the nature of an overriding interest capable of subsisting against a registered proprietor even without noting on the register. Whether or not the Applicants will ultimately establish such rights is a matter for the trial; what matters at this stage is that the interest asserted is real, substantial and directly bound up with the suit property. 3. **On the second limb of prejudice in the event of non-joinder**, the gravamen of the main suit, as discernible from the record and the Ruling of this Court (Dena, J.) delivered on 22nd October, 2024, revolves around the validity of the Plaintiff’s purchase and registration of the suit property, injunctive and preservatory orders over the suit property, and the competing claims thereto as between the Plaintiff and the 1st to 9th Defendants. Any orders made in the suit, whether of injunction, eviction, preservation or declaration of title, would directly and inevitably affect the persons physically residing upon and cultivating the suit property. Should the suit be heard and determined in the absence of the Applicants, they would be condemned unheard on the fate of the land upon which they live with their families, in patent violation of the rules of natural justice and the right to fair hearing enshrined under the provision Article 50 of the Constitution of Kenya, 2010. The prejudice is thus manifest, clearly outlined and by no means remote. 4. **On the third limb of the relevance and distinctiveness of the intended case**, the Applicants have set out with sufficient clarity the case they intend to advance, namely, their long-standing occupation of the suit property, their asserted overriding interest thereon, the assertion that the Plaintiff, having acted as Counsel for some of the respondents in Mombasa ELC No. 6 of 2015 (O.S.), had actual notice of their occupation and claim, and the contention that he cannot therefore be a bona fide purchaser without notice. None of the parties presently on record, the Plaintiff and the 1st to 9th Defendants being locked in a vendor-purchaser contest inter se, and the 10th to 12th Defendants being statutory parties, can be expected to articulate or champion that case. The Applicants’ intended case is accordingly relevant, distinct and not a mere replication of the positions of the existing parties. 5. The Court has anxiously considered the Plaintiff’s contention under Ground 4 of the Grounds of Opposition, which, shorn of embellishment, is an invocation of “***the doctrine of Res Judicata”*** under the provision of Section 7 of the Civil Procedure Act, Cap. 21. For the said doctrine to apply, the matter in issue must have been directly and substantially in issue in a former suit between the same parties or parties under whom they claim, litigating under the same title, and must have been heard and finally decided by a Court competent to try it. On the material placed before this Court, none of these prerequisites has been established. As already found hereinabove, Mombasa ELC No. 6 of 2015 (O.S.) was never heard nor finally decided on its merits; it abated by operation of the law upon the death of all the respondents therein. Abatement is a procedural terminus arising from the death of parties; it is not, and has never been, an adjudication of the substantive rights of the parties. Further, the parties are not the same: the registered proprietor against whom relief would now be sought is the Plaintiff himself, who was not a party to the year 2015 suit, while some of the Applicants herein were equally not parties thereto. The plea of res judicata, such as it is, must therefore fail at this stage, without prejudice to the Plaintiff’s right to canvass any such defence at the trial. 6. The Court is alive to the caution that joinder of parties is not automatic and remains an exercise of judicial discretion, which discretion must be exercised judiciously upon sound legal principles and not capriciously. The Court is equally guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act, Cap. 21, Section 3 of the Environment & Land Court Act, No. 19 of 2011 and the principle under Article 159 (2) of the Constitution of Kenya, 2010 that justice shall be administered without undue regard to procedural technicalities. Enjoining the Applicants at this stage, before the hearing of the main suit has commenced in earnest, will occasion no prejudice whatsoever to the Plaintiff or the Defendants; on the contrary, it will enable this Court to effectually and completely adjudicate upon and settle all the questions involved in the suit in one fell swoop, avoid a multiplicity of suits over the self-same parcel of land, and forestall the spectre of conflicting decisions. 7. The upshot of the foregoing analysis is that the Applicants have satisfied all the threshold elements for joinder as Interested Parties as decreed by the Supreme Court and this Court finds and holds that the Notice of Motion application dated 13th February, 2026 was merited. However, and for the avoidance of doubt, the joinder of the Applicants herein is strictly for purposes of enabling them to ventilate their interest in these proceedings; it does not amount to any finding or determination on the merits of their claim of adverse possession or overriding interest, nor on the validity or otherwise of the Plaintiff’s title, all which issues remain live for determination at the trial upon adducing of ***“Viva Voce”*** evidence. ***ISSUE No. c). Who should bear the costs of the application.*** 1. It is well established that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceedings in any litigation. The provision of Section 27(1) of the Civil Procedure Act, Cap. 21 establishes the general principle that costs follow the event unless the Court, for good reason, orders otherwise. By the event it means the results or outcome of the legal action. 2. Further, the provision of Section 27 (2) of the Act, provides:- **“The Court or Judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.”** 1. This provision empowers the Court not only to award costs but also to grant interest on those costs, subject to a ceiling of 14% per annum. It is a recognition that costs are not merely compensatory but also restorative, ensuring that a successful litigant is not disadvantaged by the time taken to recover expenses incurred in litigation. 2. In the case of:- ***“Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 others [Supra]”***, where the Supreme Court emphasized that costs are a natural consequence of litigation and should ordinarily be borne by the party whose conduct necessitated judicial intervention. 3. Nonetheless, the instant application, being interlocutory in nature and having merely paved the way for the Applicants’ participation in the main suit whose outcome remains undetermined, and further taking into account that the substantive contest between the parties is yet to be heard, the Court deems it just, fair and reasonable that the costs of the application do abide the outcome of the main suit. 4. **Conclusion and Disposition** 5. Ultimately, having conducted such an elaborate, in-depth and analytical review of the framed issues herein, the Honorable Court finds that the 1st to 15th Interested Parties/Applicants is merited. Consequently, for the avoidance of any doubt, the Court proceeds to make the following orders:- 6. **THAT the Notice of Motion application dated 13th February, 2026 by the 1st to 15th Interested Parties/Applicants be and is hereby allowed;** 7. **THAT Ibrahim Ramadhan Mchechemo, Mwinyihaji Hassan Makenzi, Salimu Mwinyikombo, Hamisi Hamadi Mwadende, Bint Omar Iddi Chuma, Mgeni Shafi, Mohammed Swalehe Dende, Ngozi Bakari Mohamed, Mohamed Hassan Mkondo, Swalehe Shafi Dende, Hassan Ali Mwatendo, Musa Omari Rofiji, Swaleh Athuman Dende, Omari Bakari Kingabwi and Juma Mohamed Lippi be and are hereby enjoined into these proceedings as the 1st to 15th Interested Parties respectively.** 8. **THAT the Plaintiff do Amend the Plaint WITHIN 14 DAYS from the date of this ruling to reflect order b) above and thereafter the 1st to 15th Interested Parties do file and serve their responses and/or pleadings WITHIN TWENTY ONE (21) DAYS from the date of service of the Amended Plaint and the Plaintiff and the Defendants be and are hereby granted leave, if need be, to file and serve any responses thereto WITHIN TWENTY ONE (21) DAYS of such service.** 9. **THAT for expediency, the matter be mentioned on 15th October, 2026 for purposes of ascertaining compliance with these orders and for fixing the main suit for hearing on hearing 26th January, 2027 before the ELC No. 1 at Kwale.** 10. **THAT in the meantime, parties are encouraged to continue exploring the on – going out of court negotiations which is in tandem with the Judiciary Alternative Judicial System (AJS) and Social Transformation on Access to Justice (STAJ) policy which are anchored under the provision of Article 159 ( 2 ) ( c ) of the Constitution of Kenya, 2010 and Section 20 ( 1 ) & ( 2 ) of the Environment & Land Act, No. 19 of 2011.** 11. **THAT the costs of the application shall be in the cause.** **IT IS SO ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……21ST ……DAY OF ………JULY…..……..……..2026.** **………………………………….** **HON. MR. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT** **KWALE** **Ruling delivered in the presence of:** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Tindika, the Plaintiff appearing in person and Advocate on record for the Plaintiff. 3. M/s. Kimani Advocate for the 1st to 15th Interested Parties/Applicants. 4. Mr. Kemei Advocate for the 10th, 11th and 12th Defendants. 5. No appearance for the 1st , 4th to 9th Defendants.