https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4758

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLC NO. E058 OF 2024** **SAMUEL WAWERU KARIUKI………………………………….…….PLAINTIFF** **VERSUS** **NYAKINYUA INVESTMENTS LIMTED & 16 OTHERS………..DEFENDANTS** **RULING** 1. This Chamber Summons dated 20/01/2026 is brought under Order 1. rule 10(2). Order 1. Rule 25 of (the Civil Procedure Rules). Section 1A, 1B, 3 and 3A of the Civil Procedure Act. Cap 21-Laws of Kenya and all other enabling Provisions of the Law seeking the following orders: 2. Spent. 3. THAT this Honourable Court be pleased to grant leave to the Applicant to be enjoined as a Defendant in these proceedings. 4. THAT costs of this Application be provided for. 5. The grounds upon which the Applicant brought the Chamber Summons is that she claims that she is the bona fide current resident and legally registered proprietor holding absolute indefeasible title to all that parcel of land known as **RUIRU/RUIRU/EAST/BLOCK 2/41306**, whose intended joinder and inclusion as a Defendant in these proceedings is imperative to enable her to actively, effectively, and robustly defend, safeguard, and protect her registered proprietary rights and interests over the suit property; a course of action that is meet, just, equitable, and in the overriding interests of justice as supported by the depositions in the Supporting Affidavit of **HANNAH MUMBI WAINAINA** sworn on even date. 6. In this Supporting Affidavit, the Applicant, **Hannah Mumbi Wainaina**, deposes that she is the current occupant and legally registered proprietor of the parcel of land known as **RUIRU / RUIRU EAST/ BLOCK 2/41306**, with the official title deed processed in her name. She avers that her formal inclusion as a Defendant in the suit is absolutely essential to protect her established proprietary interests, and contends that the application is brought in the overriding interests of justice, ensuring that no party will suffer any prejudice if the orders are granted. 7. Consequently, she prays that the application be allowed with costs provided for. 8. The Application is opposed vide a Replying Affidavit sworn on 11/02/2026 by one Samuel Waweru the Plaintiff/respondent in this application. In this Replying Affidavit, the Respondent, Samuel Waweru, opposes the Applicant’s chamber summons, deposing that the application is belated, diversionary, and a blatant abuse of the court process calculated solely to frustrate and delay the hearing of the main suit. The Deponent points out a procedural irregularity and states that the Applicant is the spouse of Kaberi Gitau (the 16th Defendant), who has repeatedly been reported as deceased by defense Counsel. 9. That rather than initiating a proper substitution of the deceased party as directed by the court, the Applicant has instead sought an independent enjoinder as a Defendant. The Plaintiff/respondent avers that this move is laced with mischief, noting that the Applicant claims the exact same parcel of land as her late husband but purports to hold a conflicting Share Certificate. To demonstrate that the resultant title was not genuinely obtained, the Plaintiff/respondent attaches and marks as **"SKK-1"** copies of the two conflicting Share Certificates. 10. The Plaintiff/respondent further deposes that the title deed held by the Applicant was acquired through a hurried and highly suspicious transfer. The Applicant allegedly took advantage of temporary internet and network disruptions suffered by the Defendant’s advocates during an *inter partes* hearing, which had led to the brief vacation of interim orders originally issued on 24/04/2024. 11. To substantiate this timeline of events, the Plaintiff/respondent attaches a copy of the formal court order and case activity logs marked as **"SKK-2"**. The Deponent emphasizes that although the court subsequently reinstated conservatory orders and directed that the *status quo* be maintained, the Applicant had already swiftly moved the property into her name during that brief window. Noting that defense Counsel has still failed to produce the 16th Defendant's death certificate or effect a legal substitution, the Plaintiff/respondent contends that the application is driven by bad faith and delay tactics, and prays that the entire application be dismissed with costs. 12. In response to the Replying Affidavit’s averments, the applicant filed a further affidavit sworn on 28/04/2026 in which she deposes by confirming unequivocally that the 16th Defendant, Kaberi Gitau, is deceased. She explains that while she is yet to obtain the official Death Certificate from the relevant authorities, his demise is sufficiently substantiated by alternative statutory documentation. To this end, she attaches and marks as **"HMW-1"** a copy of the official Burial Permit dated 30/06/2022, alongside a clearance certificate from the Kenyatta University Funeral Home dated 1/07/2022, which is attached and marked as **"HMW-2"**. The Deponent submits that these documents effectively controvert the Plaintiff’s assertions regarding the lack of verifiable proof of the 16th Defendant's death. 13. She further addresses the procedural distinction between party substitution and joinder, averring that the Plaintiff’s insistence on substitution is legally erroneous. She states that she does not seek to enter the proceedings merely as the legal representative or administrator of the deceased's estate; rather, she possesses an independent, distinct, and legally recognizable personal proprietary interest in the suit property known as **RUIRU/RUIRU EAST BLOCK 2/41306**, having been duly registered as the absolute proprietor. As the party in actual possession, occupation, and residence on the suit property, she contends that her joinder is imperative to prevent the Honourable Court from determining core issues touching upon her registered land rights in her absence, making her a necessary party for the effectual and complete adjudication of the dispute. 14. She denies the Plaintiff's allegations concerning fraud, irregular transfer, or a hurried acquisition of the title, dismissing them as false, unsubstantiated, and legally premature. She deposes that such serious imputations raise triable issues of fact that can only be properly ventilated, tested, and determined during a full trial, and that the Plaintiff cannot rely on unproven assertions to defeat her constitutional right to be heard. Maintaining that the application is filed in good faith and without undue delay, she reiterates that no prejudice will be occasioned to the Plaintiff and prays that, in the interest of justice, fairness, and equity, the application for joinder be allowed. 15. The Application was canvassed via written submissions. The applicant filed her submissions dated 28/04/2026 and the Plaintiff/respondent filed his submissions dated 4/05/2026. 16. The applicant through her Counsel submits that she satisfies the established legal threshold for joinder as she is the duly registered proprietor and actual occupant of the suit property known as **RUIRU/RUIRU EAST BLOCK 2/41306**, thereby possessing a direct and substantial proprietary interest that will be directly be affected by any subsequent decree of the Court. 17. Invoking the case of **Civicon Limited v Kivilwatt Limited and 2 Others [2015] eKLR**, Counsel underscores that any party reasonably affected by pending litigation is a necessary and proper party who should be joined to enable a complete adjudication, reinforcing that an applicant merely needs to demonstrate a sufficient interest in the suit rather than an absolute certainty of success at trial. The Applicant further contends that the Respondent’s insistence on her pursuing a substitution under Order 24 of the Civil Procedure Rules is legally flawed and misplaced; she does not seek to merely represent or step into the shoes of the estate of the deceased 16th Defendant, Kaberi Gitau, but rather asserts her own distinct, personal, and legally recognized absolute title. 18. Addressing the Respondent’s allegations of fraud, irregular land transfer, and conflicting Share Certificates, the Applicant submits that these are serious, triable imputations of fact that cannot be determined at this interlocutory stage, but must instead be specifically pleaded and strictly proven at a full trial. Citing **Kinyanjui Kamau v George Kamau**, Counsel reminds the Court that allegations of fraud carry a higher standard of proof than an ordinary balance of probabilities, and argues that unproven assertions cannot be leveraged to deny the Applicant her fundamental right to participate in the proceedings. 19. It is emphasized that while the Respondent will suffer no prejudice if the joinder is granted, excluding the Applicant would result in a grave violation of the rules of natural justice specifically the *audi alteram partem* rule by determining ownership rights in her absence. Ultimately, Counsel invokes the Court’s overriding objective to facilitate a just, expeditious, and proportionate resolution of disputes, and prays that the application be allowed with costs being in the cause. 20. The Plaintiff/respondent submitted that the Honourable Court should dismiss the application with costs on the grounds that it constitutes a flagrant abuse of the court process designed solely to delay the logical conclusion of the suit. The Respondent points out that the Applicant, who is the widow of the deceased 16th Defendant (Kaberi Gitau), is mischievously seeking an independent enjoining to claim the exact same parcel of land, **Ruiru/Ruiru East/Block 2/41306**, previously claimed by her late husband. 21. This independent application directly flouts express court directions requiring the defense Counsel to instead procure a death certificate and formally substitute the 3rd and 16th Defendants, who have been reported deceased. To expose the underlying duplicity, the Respondent highlights that two conflicting Share Certificates for the same suit land have been attached to the Replying Affidavit dated 11/02/2026, which fundamentally impugns the legitimacy of the Applicant's purported title. Furthermore, the Respondent poses procedural queries regarding the estate's failure to take legal steps toward substitution since the year 2022, questioning the true authority under which defense Counsel has been purporting to defend the suit on behalf of the deceased 16th Defendant. 22. Analyzing the legal threshold for joinder under Order 1 Rule 10 of the Civil Procedure Rules, the Respondent submits that the Applicant cannot bypass established succession laws to assume the rights, obligations, or liabilities of a deceased litigant. It is a strict tenet of Kenyan jurisprudence that a party claiming land through a deceased person must first petition the probate court for a limited or full grant of letters of administration to obtain the requisite *locus standi* to defend the estate. To reinforce this statutory position, the Respondent relies on the case of **Karani & Another v Mwaura; Irungu & Another (Applicant) (Suing as the Legal Representatives of the Estate of George Henry Irungu) (Environment and Land Case Civil Suit 361 of 2017) [2023] KEELC 20388 (KLR) (5 October 2023) (Ruling)**, wherein Justice L. Gicheru affirmed that what donates a person the power to sue or defend a suit on behalf of a deceased person is a valid grant *ad litem* or a full grant under Order 24 Rule 3 of the Civil Procedure Rules. By attempting an end-run around the lawful succession process, the Applicant demonstrates bad faith and a clear intent to frustrate the pursuit of justice. Consequently, the Respondent prays that the application be dismissed with costs, and that strict timelines be imposed for the lawful substitution of the deceased 16th Defendant, failing which the right to defend the suit should be deemed permanently waived. **Analysis and Determination** 1. The principal issue for determination is; 2. *Whether Hannah Mumbi Wainaina ought to be enjoined as a Defendant in these proceedings by virtue of her claim as the registered proprietor of the suit property known as RUIRU/RUIRU EAST/BLOCK 2/41306*. 3. Subsidiary issues arising therefrom include: 4. *Whether the Applicant possesses a sufficient and distinct proprietary interest capable of sustaining an independent joinder as opposed to a substitution under Order 24 of the Civil Procedure Rules;* 5. *Whether the alleged irregularity and suspicious circumstances surrounding the transfer of the suit property to the Applicant's name constitute a bar to her joinder at this interlocutory stage;* and 6. *Whether the application constitutes an abuse of the court process designed to frustrate and delay the hearing of the main suit.* 7. The starting point for the Court's inquiry is the legal framework governing joinder of parties. Order 1 Rule 10(2) of the Civil Procedure Rules confers upon the Court a wide and enabling discretion to join any person as a party to proceedings at any stage where it appears to the Court that such person ought to have been joined, or whose presence before the Court is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit. The philosophy undergirding this provision is captured eloquently in the celebrated English decision of **Amon v Raphael Tuck & Sons Ltd[1956] 1 QB 357**, where Devlin J held that the test for joinder is not whether the proposed party has a cause of action or a defence, but whether their presence is necessary for the complete and effectual adjudication of the matters in controversy. 8. This broad purposive approach to joinder has been consistently adopted in Kenyan jurisprudence. In **Central Kenya Limited v Trust Bank Limited & 4 Others** **[1996] KECA 130 (KLR**) and **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR,** the Court of Appeal affirmed that the jurisdiction to add parties is unfettered and should be exercised liberally in order to avoid a multiplicity of suits and to ensure that all parties who may be affected by a Judgment are before the court. 9. **Halsbury's Laws of England, Volume 37**, similarly instructs that the overriding consideration in joinder applications is whether the proposed party has a direct and tangible interest in the subject matter of the litigation, and that the court ought to lean in favour of joinder where any doubt exists, so as to prevent injustice. **Black's Law Dictionary, 11th Edition**, defines a necessary party as one whose interest in the controversy is of such a nature that a final Decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. 10. Applying these principles to the facts before this Court, the Applicant holds a registered title in her own name over the suit property, RUIRU/RUIRU EAST/BLOCK 2/41306, and is in actual physical occupation thereof. Her interest is therefore neither speculative nor remote; it is a direct registered proprietary interest that will undeniably be affected by any decree this Court may issue in the main suit. To proceed to determine the ownership of the suit property in her absence would be to render a Judgment that binds land over which she holds a registered title without affording her an opportunity to be heard, a result that would be unconscionable and contrary to the overriding objective enshrined in Sections 1A and 1B of the Civil Procedure Act. 11. The Respondent's principal objection, that the proper remedy available to the Applicant is substitution under Order 24 of the Civil Procedure Rules rather than an independent joinder, is legally wanting. The distinction between substitution and joinder is not merely procedural but substantive. Substitution under Order 24 is the mechanism by which a person steps into the shoes of a deceased litigant to prosecute or defend a claim that belonged to the estate of that deceased person. It presupposes that the applicant seeks to assert rights derived from or through the deceased. Joinder under Order 1 Rule 10(2), on the other hand, is the mechanism by which a person asserts their own independent rights and interests which happen to be implicated in the existing proceedings. 12. Substitution is seen to be backward-looking, being concerned with who stands in the place of one who has departed, while joinder is forward-looking, being concerned with who must be present to ensure a just resolution of the matters in controversy. The Applicant does not claim through the estate of the deceased 16th Defendant, Kaberi Gitau; she asserts her own registered title, obtained in her own name, and her own right of occupation. 13. In **Pegang Mining Co Ltd v Choong Sam & Ors[1969] 2 MLJ 52**, Lord Diplock, delivering the advice of the Privy Council, stated memorably that; ***"A party ought to be added whenever he has an interest which may be affected by the Judgment or order of the court, and it is better to have him before the court so that he may protect his interest than to exclude him and leave him to seek relief in separate proceedings."*** 1. This reasoning applies to the present case. The allegation that the transfer of title to the Applicant was effected during a window when conservatory orders had been briefly vacated is, at best, a matter raising triable issues of fact. In **Koinange v Koinange[1987] KLR 224,** the Court of Appeal held that allegations of fraud and irregular dealings in property cannot be resolved at the interlocutory stage and must be ventilated through pleadings and tested at a full trial. The eminent scholar Professor Jeffrey Hackney, writing in **Understanding Equity and Trusts(1987)**, similarly cautions that courts must resist the temptation to summarily resolve contested questions of title at the threshold stage, as to do so would be to deny a party the full benefit of the adversarial process. The existence of conflicting Share Certificates, while troubling, is precisely the sort of contested factual matrix that demands a full trial, not a summary dismissal of a joinder application. To deny the Applicant joinder on the strength of unproven and hotly disputed allegations of fraud would be to prejudge the very issues that the main suit is called upon to determine. 2. Turning to the question of delay and abuse of process, the Court notes that while the Respondent strenuously characterises the application as belated and mischievous, the law does not impose upon an applicant for joinder a strict time limit within which the application must be brought, provided that no irreparable prejudice is occasioned to the existing parties. In **Re Vandervell's Trusts (No 2) [1974] Ch 269**, Megarry J observed that courts of equity have always leaned strongly against allowing procedural technicalities to defeat substantive rights, particularly where the party seeking relief has a genuine interest in the outcome of the proceedings. 3. The Applicant in the present matter has deposed that she is in actual occupation of the suit property and holds a registered title in her own name, facts that the Respondent has not controverted by way of an independent title search or a formal challenge to the register. The Respondent will suffer no prejudice from the joinder that cannot be remedied in costs, whereas the Applicant stands to lose her registered proprietary rights entirely if the suit is determined in her absence. The balance of justice therefore tilts decisively in favour of granting the joinder. However, this Court is alive to the serious concerns raised by the Respondent regarding the suspicious timing of the transfer, the existence of conflicting Share Certificates, and the prolonged failure by defense Counsel to effect a formal substitution of the deceased 16th Defendant since the year 2022. 4. These matters are weighty and the Court directs that they be specifically pleaded and fully canvassed at the trial of the main suit. The Court further directs that defense Counsel cannot continue to indefinitely shelter behind the deceased 16th Defendant without taking the necessary legal steps to regularise the position through the probate court, and strict timelines shall be imposed to that effect in the orders that follow. 5. Consequently, I issue the following Orders: 6. ***The Chamber Summons dated 20/01/2026 is hereby allowed.*** 7. ***Hannah Mumbi Wainaina is hereby joined as a Defendant in these proceedings and shall henceforth be designated as the 17th Defendant, with leave granted to her to file and serve a Defence within fourteen (14) days from the date of this Ruling.*** 8. ***The joinder of Hannah Mumbi Wainaina as the 17th Defendant is expressly without prejudice to the Plaintiff's right to challenge the validity and regularity of the transfer of the suit property into her name, all questions of fraud, irregular acquisition of title, and conflicting Share Certificates being hereby reserved for ventilation and full determination at the trial of the main suit.*** 9. ***Defense Counsel currently on record for the Defendants is hereby directed, within thirty (30) days of the date of this Ruling, to file and serve upon all parties a certified copy of the Death Certificate of the 16th Defendant, Kaberi Gitau, and to take out the requisite application for substitution of the deceased 16th Defendant under Order 24 of the Civil Procedure Rules, failing which the right to defend the suit on behalf of the estate of the 16th Defendant shall be deemed irrevocably waived and the name of the 16th Defendant shall be struck out from the proceedings.*** 10. ***The costs of this application shall be in the cause.*** 11. ***The matter shall be mentioned before this Court on 27/10/2026 for the purpose of taking fresh directions on the consolidated conduct of the main hearing following the joinder of the 17th Defendant.*** It is so ordered. **DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 22ND DAY OF JULY, 2026.** ………………………… **MOGENI J** **JUDGE** **In the presence of: -** Mr. Gichuki for the Plaintiff 1st – 16th Defendants - Absent Mr. Melita - Court Assistant ………………………… **MOGENI J** **JUDGE**