https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5101

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E041 OF 2026** **SHIELD HOPE LIMITED ……………………………………………PLAINTIFF** **=VERSUS=** **NAIROBI CITY COUNTY GOVERNMENT ……….….……..1ST DEFENDANT** **CHIEF OFFICER MOBILITY** **NAIROBI CITY COUNTY GOVERNMENT...……………….2ND DEFENDANT** **THE OCPD, CENTRAL POLICE STATION, NAIROBI…… 3RD DEFENDANT** **AND** **RISEN COMPANY LIMITED ……….………… INTENDED 4TH DEFENDANT** **RULING** 1. By a Notice of Motion dated 5th March 2026, brought under Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 1 Rule 10(2) and Order 40 Rule 6 of the Civil Procedure Rules, the Applicant/ Proposed Intended 4th Defendant seeks the following orders: 1. ***Spent.*** 2. ***That the Honourable Court be pleased to join the Intended 4th Defendant/Applicant as the 4th Defendant in this suit.*** 3. ***Spent.*** 4. ***Spent.*** 5. ***That pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order restraining the Plaintiff by itself, its officers, agents, employees, servants and anyone under its instructions or authority from stopping, Interfering with and/or blocking the Intended 4th Defendant/Applicant’s vehicles from picking and dropping off passengers at their allocated parking space namely two (2) slots along Tom Mboya Street at Leon House and Stewarts Building; two (2) slots at Simla House and King’s Collection along Tom Mboya Street; and three (3) slots outside Gloria House along Ronald Ngala Street, and the Officer Commanding Central Police Station do supervise and ensure compliance.*** 6. ***That pending the hearing and determination of this suit, the Honourable Court be pleased to discharge and/or set aside the ex parte injunctive orders issued on 20th February 2026.*** 7. ***That the costs of this application and suit be provided for.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Fredrick Mwangi Mbuthia, a director of the Intended 4th Defendant, sworn on even date. **THE APPLICANT’S CASE** 1. The deponent averred that on 20th February 2026, this Court issued a temporary injunction restraining the Respondents from interfering with the Plaintiff's PSV operations along its approved Road Service Licence route and from interfering with the Plaintiff's approved pick-up and drop-off points at Leon House and Stewarts Building along Tom Mboya Street, as well as Simla House and King's Collection along the same street and outside Gloria House along Ronald Ngala Street. 2. He argued that the Plaintiff failed to disclose material facts and approached this Court with unclean hands, as the slots subject to the impugned orders had at all material times been occupied and used by the Intended 4th Defendant under lawful authority. 3. He contended that the Applicant has the necessary permits and licences and has settled all payments owed to Nairobi City County, thereby establishing a legitimate expectation of continued peaceful use of the designated slots. He explained that the impugned orders had disrupted the Applicant’s operations and caused it substantial loss, with investors who had financed vehicles in its fleet through bank loans facing the risk of auction upon default. 4. He asserted that Isaac Richu Karanja, a director of the Plaintiff, was previously the sole shareholder and director of the Intended 4th Defendant. By a Sale Agreement for Shares dated 19th August 2024, Isaac Richu Karanja sold all his shares and proprietary rights in Risen Company Limited to the deponent for a consideration of Kshs. 23,000,000/=. 5. He stated that the Sale Agreement expressly guaranteed that all operations of Risen Company Limited would be maintained after the sale, including all parking spaces and pick-up and drop-off points. He stated that the schedule attached to the agreement contained an express warranty by Isaac Richu Karanja that the Intended 4th Defendant held five PSV passenger-picking points in Nairobi City County, including the slots in issue in this suit. 6. He argued that Isaac Richu Karanja, now acting through the Plaintiff, had deliberately engaged in conduct intended to undermine the new owners of the Intended 4th Defendant, including trespassing into its designated parking areas and unlawfully transferring vehicles registered under the Applicant on the NTSA portal to the Plaintiff's portal. 7. He stated that motor vehicles bearing registration numbers KDQ 937E, KDQ 936E, KBX 327D, and KCK 023V were transferred to Shield Hope Company Limited through the initiative of Isaac Richu Karanja. He further stated that after the Applicant lodged formal complaints vide letters dated 25th February 2026, NTSA returned the vehicles to the Intended 4th Defendant's portal and commenced investigations. 8. The deponent asserts that Annexure RAK 3, produced by the Plaintiff in its Notice of Motion dated 2nd February 2026, is a forgery. He explained that the document is dated 15th January 2021, but the Plaintiff was registered as a legal entity on 13th September 2021, making it impossible for the 2nd Defendant to have issued the Plaintiff a picking and dropping zone allocation before its incorporation. 9. He further contended that the Plaintiff's Annexure RAK 2, a letter from NTSA dated 16th December 2025, shows that the Plaintiff only applied for registration as a transport operator in November 2025 and that NTSA was at that time activating the Plaintiff's portal to enable it to apply for road service licences. Based on this, the deponent argued that the Plaintiff could have commenced operations only around 2026, and that any operational authority supposedly granted before November 2025 was fictitious and deliberately intended to mislead this Court. 10. The deponent stated that the disputed pick-up and drop-off points are subject to a subsisting injunctive order issued in favour of the Intended 4th Defendant in Milimani MCCOMMSU/E1447/2025: Risen Company Limited v Forward Travellers Sacco Limited and Nairobi City County, by a ruling of Hon. Becky Cheloti delivered on 8th December 2025, which restrains any interference with the Intended 4th Defendant's vehicles from picking up and dropping off passengers at the said slots and directs the Officer Commanding Station, Central Police Station, to supervise the compliance. 11. He maintained that those orders have not been lifted, varied, or set aside. He argued that the orders issued by this Court on 20th February 2026 are in direct conflict with them, both being injunctive in nature but favouring different parties regarding the same subject matter, thereby creating uncertainty and exacerbating the dispute. 12. In conclusion, he urged the Court to allow the application as prayed. join the Applicant as the 4th Defendant in this suit and to stay, vary, vacate, or set aside the order issued on 20th February 2026 pending the hearing and determination of the Application and the suit. **THE PLAINTIFF/ RESPONDENT’S CASE** 1. The Plaintiff/Respondent filed Grounds of Objection dated 28th April 2026 and a Replying Affidavit sworn by its Director, Isaac Richu Karanja, in opposition to the application. 2. The deponent raised an objection to the competence of the application on multiple grounds. He argued that the application was an omnibus motion invoking Order 40 of the Civil Procedure Rules to seek injunctive relief at a stage when the Intended 4th Defendant had not yet been joined as a party to the suit and without a primary substratum of pleadings on which this court could base any injunctive order, rendering the application to set aside the court's orders incompetent. 3. He also argued that Order 40 Rule 6 is entirely inapplicable, as that provision relates to suits pending before a court for over a year, whereas this suit was filed in February 2026. Furthermore, he contended that the different reliefs sought in the application could not legitimately be granted as prayed. 4. The deponent argued that the grounds raised in the application fall outside this court's jurisdiction and, if valid, are solely within the statutory jurisdiction of the National Transport and Safety Authority. He asserted that any objection to the Plaintiff's Road Service Licence route can only be challenged before the NTSA, as the licensing authority, and not in collateral proceedings before this court. 5. He argued that the complaints made by Fredrick Mwangi Mbuthia against him, in his capacity as a former director of Risen Company Limited, were based on alleged company law interactions between the parties. He stated that the appropriate forum for such matters was the Commercial Division of the High Court. He also noted that the Intended 4th Defendant's pending case, MCCOMMSU/E1447/2025, was filed in the Commercial Division of the Chief Magistrates Court, and that neither the Plaintiff nor the deponent was involved in those proceedings. He claimed that the Intended 4th Defendant had not shown any connection between those proceedings and the current suit sufficient to justify the joinder being sought. 6. Regarding the merits of the Applicant’s substantive claims, the deponent denied all allegations concerning the pick-up and drop-off slots and stated that the Plaintiff had lawfully applied for and received authorization from the Defendants to operate its PSVs at the slots specified in the suit. He further stated that the Plaintiff was lawfully licensed by the NTSA to operate its PSVs along the route outlined in its Road Service Licence, that the 1st Defendant had directed the Plaintiff to operate along Tom Mboya Street and allocated the relevant slots to it, and that any objection to this allocation could not be raised by the Applicant through these proceedings outside the authorized statutory procedures. 7. The deponent admitted that he had sold his shares in Risen Company Limited to Fredrick Mwangi Mbuthia but argued that any allegations of breach of the share sale agreement could not be addressed in the present proceedings. He further claimed that the Plaintiff, Shield Hope Limited, was a separate legal entity incorporated on 13th September 2021 and that no agreement existed between the Plaintiff and the Intended 4th Defendant or Fredrick Mwangi Mbuthia, and that the Plaintiff's separate legal personality prevented the deponent from being personally responsible for the Applicant's claims. He denied any interference with the Applicant's business and maintained that the allegations in that regard were directed at him personally rather than at the Plaintiff as a separate corporate entity. 8. He averred that the allegation of unlawful vehicle transfers had previously been raised before the NTSA by Fredrick Mwangi Mbuthia, who had acknowledged that forum under oath. He stated that the NTSA had resolved the matter after establishing that Fredrick Mwangi Mbuthia had failed to meet certain conditions of the share sale agreement, and that the issue had been closed accordingly. He contended that by resorting to the NTSA on that matter, Fredrick Mwangi Mbuthia had acknowledged it as the appropriate forum, and that his claims before this court ought, on that basis, to be dismissed. 9. The deponent vehemently denied that the documents produced by the Plaintiff were forgeries, asserting that they were obtained lawfully, and described the allegation as evidence of a desperate situation. He further argued that the Intended 4th Defendant had provided no evidence of any legal claim against the Plaintiff sufficient to justify the sought joinder, had not stated how it became aware of these proceedings, and had not explained why joinder was sought in the absence of any substantive claim against the Plaintiff in this case. He described the Applicant as a business competitor in the PSV industry, aiming to secure a commercial monopoly and interfere with the administration of justice in these proceedings. 10. The application was canvassed by way of written submissions. **THE APPLICANT’S SUBMISSIONS** 1. The Applicant filed its submissions dated 28th May 2026. 2. Regarding the objection to the jurisdiction of the application, counsel submitted that the Plaintiff's objection was misconceived and without merit. Counsel argued that a plain reading of the application showed that joinder was initially sought, with the prayer for joinder appearing first among the prayers in the Motion, and that all consequential relief derived from it. 3. Counsel further submitted that the fact that joinder and injunctive relief were sought in the same application did not render the Motion omnibus, incompetent, or fatally defective, as the Applicant is entitled to seek all reliefs arising from the same set of facts in a single application, especially given the urgency of the matter and the need to preserve the subject matter pending its determination. To support this argument, Counsel relied on Order 40 Rule 7 of the Civil Procedure Rules, **HOPF v Director of Survey & 2 Others; Sakaja & 2 Others (Interested Parties) [2022] KEELC 6 (KLR),** **Abraham Mukhola Asitsa v Silver Style Investment Company Ltd [2020] KEHC 965 (KLR),** and **Thomas Ratemo Oira v Equity Bank Limited [2015] KEHC 8173 (KLR**). 4. Regarding the issue of joinder, Counsel cited **Order 1 Rule 10(2)** of the **Civil Procedure Rules,** **Civicon Limited v Kivuwatt Limited & 2 Others [2015] eKLR**, and **Gurtner v Circuit [1968] 1 All ER 328**. Counsel submitted that the Intended 4th Defendant is not a peripheral or incidental party to the dispute but the party whose rights over the impugned parking slots were directly challenged by the Plaintiff's claim and directly affected by the orders issued on 20th February 2026, and that it ought accordingly to be joined as a Defendant. 5. Regarding whether the orders of 20th February 2026 should be set aside, Counsel relied on Order 40 Rule 7 of the Civil Procedure Rules and **Josephat Supare Ole Sakunda & 10 Others v Harrison Musau & Another [2006] KEHC 806 (KLR), Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation & Others [1993] LLR 2525 (CAK) and Isaacs v Robertson [1984] 3 All ER 140.** 6. Counsel contended that the impugned orders were obtained through material non-disclosure and misrepresentation on three grounds: that the Plaintiff represented itself as the lawful user of the impugned pick-up and drop-off points without disclosing that the Applicant has held operational licences for the same spaces since 2017; that the Plaintiff failed to disclose that one of its directors, Isaac Richu Karanja, was previously the sole shareholder and director of the Applicant and sold all his shares, proprietary rights, and interests in the Applicant to Fredrick Mwangi Mbuthia as a going concern including all operational rights, goodwill, parking spaces, and pick-up and drop-off points, including the slots subject to these proceedings; and that the Plaintiff failed to disclose that the orders sought would directly affect the Applicant's business operations despite the fact that the Applicant had not been joined in the proceedings. 7. Counsel submitted that if the Court had been informed of the true factual position, it is unlikely that the impugned orders would have been granted in the same manner. Counsel urged the Court to discharge and set aside the orders of 20th February 2026 and afford all affected parties an opportunity to be heard. 8. Regarding the injunctive relief sought by the Intended 4th Defendant, Counsel applied the tripartite test established in **Giella v Cassman Brown & Co Ltd [1973] EA 358.** Counsel relied on **Mrao Ltd v First American Bank Kenya Ltd & 2 Others [2003] eKLR** for the definition of a prima facie case. Counsel submitted that the Intended 4th Defendant had produced licences confirming continuous lawful occupation and use of the impugned slots, and that the documents relied upon by the Plaintiff to assert proprietorship over the same slots were, on their face, a forgery. Counsel further submitted that the Intended 4th Defendant stood to suffer irreparable injury if the orders sought were denied and that the balance of convenience tilted in its favour. Reliance was placed on **Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR.** **ANALYSIS AND DETERMINATION** 1. Having considered the application, the responses and the submissions on record, the following issues arise for determination *a) Whether this court had jurisdiction to determine the application* *b) Whether the Applicant has met the threshold for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules.* *c) Whether the ex parte injunction issued on 20th February 2026 should be set aside;* *d) Whether the Applicant has established a case for the grant of an interlocutory injunction.* 1. Regarding the first issue, it is trite that jurisdiction is everything, and without it, the Court cannot proceed. In **Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited (1989) eKLR**, the Court held that: ***“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings...”*** 1. Similarly, in **Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others [2012] eKLR,** the Court held that: “***A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.”*** 1. The jurisdiction of this Court is derived from Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act which states as follows **(1) *The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.*** **2)*In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power 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; and*** ***e) any other dispute relating to the environment and land*** 1. The Plaintiff contends that the issues raised by the Applicant in this dispute involving the PSV licence, transport regulation, and commercial transactions fall outside the jurisdiction of this Court. 2. The record shows that the Plaintiffs' suit seeks injunctive orders to protect their occupation and use of designated PSV parking bays along Tom Mboya and Ronald Ngala Streets. 3. The Applicant states that it is the lawful occupier and user of those specific parking bays and seeks protection from interference. It is clear that both parties assert exclusive rights to the same identifiable spaces. 4. The regulatory approvals issued by NCC and the NTSA form the evidential basis upon which each party claims its entitlement. Similarly, the share sale agreement is relied upon merely as evidence of how the Applicant allegedly acquired those operational rights. Neither the validity of the share sale agreement nor the cancellation of road service licences is being sought as substantive relief in these proceedings. The main issue disclosed by the pleadings is which of the competing parties is legally entitled to occupy and use the designated PSV pick-up and drop-off bays. That issue directly relates to the occupation and use of designated sections of public land. The fact that the competing rights originate from statutory allocations rather than title deeds does not deprive this Court of jurisdiction. Section 13 of the Act is not confined to disputes over ownership. It expressly extends to disputes relating to the use and occupation of land. 5. The Court therefore finds that the transport licences, parking allocations and share sale agreement are evidentiary issues that the Court will evaluate in determining which party is entitled to continue occupying and utilizing the disputed spaces. In light of the foregoing, I find that the issues raised by the Applicant fall within this Court’s jurisdiction. 6. Regarding the second issue, the law governing joinder of parties is based on Order 1 Rule 10(2) of the Civil Procedure Rules, 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 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 to enable the court to effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.”*** 1. **Black’s Law Dictionary (8th Edition)** defines an Interested Party as: ***“a party that has a recognizable stake and therefore a standing in the matter.”*** 1. In **Trusted Society of Human Rights Alliance vs Mumo Matemo & 5 Others (2015) eKLR,** the Court held that: ***“An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the court when it is made either way. Such a person feels that his interest will not be well articulated unless he or she appears in the proceedings and champions his or her cause.”*** 1. In **Francis Karoki Muruatetu & Another vs. Republic & 5 Others (2010) eKLR**, the Supreme Court of Kenya outlined the key elements to consider in an application to join an Interested Party as follows: ***a) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough to stand apart from anything that is merely peripheral.’*** ***b) The prejudice to be suffered by the intended interested party in case of non-joinder must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote.*** ***c) Lastly, a party must, in its participation, set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.*** 1. These are persuasive decisions that establish the legal position regarding the joinder of Interested Parties. 2. In the matter at hand, it is common ground that the Applicant is a PSV operator conducting business along the routes and stages forming the subject of these proceedings. The Applicant has demonstrated that the parking bays the Plaintiff seeks to protect are the same locations from which it claims to have operated for several years. 3. The Plaintiff admits that the dispute relates to those specific parking bays, although it disputes the Applicant’s claim of entitlement thereto. Indeed, the interim orders issued by this court restrained not only the named Defendants but also other PSV operators. Based on the foregoing, the court is satisfied that any final determination regarding the lawful occupation of those locations will inevitably affect the Applicant’s rights. In light of the foregoing, I find that Applicant has demonstrated an identifiable stake in the proceedings. 4. Regarding the third issue, the Applicant invoked order 40 Rule 6 of the Civil Procedure Rules, which empowers the Court to discharge, vary or set aside an injunction order upon application by any dissatisfied party. 5. The principles governing the exercise of that discretion are well established. An interlocutory injunction can be discharged if it is shown that it was obtained through material non-disclosure, misrepresentation, concealment of material facts, abuse of court process, or if subsequent events make its continuation unjust. 6. The Applicant contends that the Plaintiff deliberately failed to disclose that it had been operating from the disputed parking bays long before the institution of the suit; that the Plaintiff's director previously owned the Applicant company and transferred all its operational rights under a share sale agreement to the Applicant; and that an order had been issued in MCCOMMSU/ E1447/2025. The Applicant further alleged that the Plaintiff relied on forged documents to obtain the ex parte orders. 7. The Plaintiff asserts that it has obtained approvals from NCC and NTSA. It denies the allegations of fraud or material non-disclosure and contends that the Applicant’s grievances are outside the scope of this suit. 8. The Plaintiff contends that the Applicant cannot seek substantive relief before it is joined as a party. Although the Applicant was not a party when the application was filed, the motion expressly seeks joinder before seeking the consequential orders for the discharge of the injunction. Since the Court has determined that the joinder is justified, there is nothing in Order 1 Rule 10 or Order 40 of the Civil Procedure Rules prohibiting the Court from proceeding to determine the consequential orders contained in the application. 9. The Plaintiff argues that he was not a party to the proceedings before the subordinate court, which involved a commercial dispute. The Applicant has exhibited an order issued in MCCOMMSU/E1447/205 to which the Plaintiff is not a party. The Court agrees with the Plaintiff that those proceedings neither bind the Plaintiff nor confer any enforceable rights upon the Applicant against the Plaintiff in these proceedings. Consequently, those proceedings cannot, without more, form a basis for setting aside the orders issued herein. 10. The Court is called upon to determine whether there are sufficient grounds to justify the discharge or variation of the orders. 11. The Court notes that the interim injunction granted on 20th February 2026 restrained not only the Defendants but also other PSV operators from interfering with the Plaintiffs' operations on the disputed routes and stages. The Applicant has demonstrated that it is one of the PSV operators asserting competing rights over the subject matter protected by those orders. It follows that the Applicant was directly affected by the injunction, despite not being joined as a party. 12. Having established that the Applicant is a necessary party, it would be contrary to principles of natural justice to allow orders affecting its operations to remain in force without affording it an opportunity to be heard. 13. Regarding the third issue, although the joinder has been allowed, the Applicant has not yet filed its defence. Interlocutory relief should be based on a pleaded cause of action and identifiable issues arising from the pleadings. The court is therefore not in a position to determine at this stage whether the Applicant has established a prima facie case. The prayer for interlocutory injunction is therefore declined. 14. In the end, I find that the application partially succeeds in the following terms ***a) The prayer for joinder is allowed.*** ***b) The Plaintiff shall amend and serve the amended Plaint within 7 days of this ruling.*** ***c) The 4th Defendant shall file and serve its statement of defence within 24 days of the amended plaint.*** ***d) The ex parte injunction issued on 20th February 2026 is set aside.*** ***d) The prayer for interlocutory injunction is declined.*** ***e) Cost shall abide with the outcome of the suit.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY 2026** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ms Amwama holding brief for Kiprop for the Applicant Harrison Kinyanjui for the Plaintiff/Respondent Vena– Court assistant