https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3420

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. E002 OF 2023** **TEBERE CONCRETE COMPANY LIMITED** ........PLAINTIFF/APPLICANT VERSUS **JOHN IRERI KINANI** ........................ 1ST DEFENDANT/RESPONDENT **MUGO NJERU** ............................... 2ND DEFENDANT/RESPONDENT **COUNTY GOVERNMENT OF EMBU**…………….. 3RD DEFENDANT/RESPONDENT AND **DIRECTOR OF CRIMINAL INVESTIGATIONS** ...... INTERESTED PARTY **RULING** **INTRODUCTION** Before this Court is a Chamber Summons Application dated 13th November 2025, filed by the Plaintiff/Applicant, Tebere Concrete Company Limited, seeking to join the Director of Criminal Investigations (hereinafter "DCI") as an Interested Party in these proceedings, for the sole purpose of compelling the production of the DCI's investigation report and findings relating to the alleged fraudulent transfer of land parcel No. MBEERE/WACHORO/1618. The substantive suit concerns a dispute over the ownership and/or transfer of the said land parcel. The Plaintiff/Applicant contends that the transfer of the suit property to the 1st and 2nd Defendants was procured by fraud and that the DCI has concluded its investigations into the matter and compiled a report containing findings material to the determination of the dispute. The Application is supported by an Affidavit sworn by Rajesh Dhanji Punja Shah, the Managing Director of the Applicant. The 1st and 2nd Defendants/Respondents oppose the Application through a Replying Affidavit sworn by the 2nd Defendant/Respondent on 26th January 2026. The 3rd & 4th Defendant/Respondent and the Interested Party indicated that they were not opposing the said Application and would not be filing any response nor written submissions. Written submissions were filed by both the Applicant and the 1st and 2nd Defendants/Respondents. **THE ISSUE FOR DETERMINATION** The sole issue for determination in this Application is Whether the Applicant has met the threshold for joinder of the Director of Criminal Investigations (DCI) as an Interested Party in these proceedings. The concept of an "Interested Party" is anchored in the Constitution of Kenya, 2010, and has been developed by the superior courts through case law. Article 50 of the Constitution guarantees every person the right to a fair hearing, while Articles 22 and 258 permit any person to institute proceedings to enforce fundamental rights or constitutional provisions. The overarching constitutional imperative is that justice must be done to all parties and that courts must adjudicate disputes effectually and completely. Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 empowers the Court to order that any person who ought to have been joined as a party, or whose presence before the Court is necessary to enable the Court to adjudicate effectually and completely upon and settle all questions involved in the suit, be added as a party. Additionally, Section 3A of the Civil Procedure Act vests in the Court inherent power to make such orders as may be necessary for the ends of justice. The Supreme Court of Kenya laid down the threshold for joinder of an Interested Party in Trusted Society of Human Rights Alliance v Mumo Matemu, SC Petition No. 12 of 2013 [2015] eKLR, where it was held that a party seeking to be joined as an interested party must demonstrate that: (i) They have a defined and recognisable stake in the proceedings; (ii) Their interest is proximate and not remote; and (iii) Their exclusion from the proceedings would prejudice them or occasion injustice in the determination of the matter. This threshold was affirmed and further elaborated in Francis K. Muruatetu & Another v Republic & 5 Others [2016] eKLR, where the Court of Appeal held that an interested party is a person who has a stake in the proceedings, even though such person was not party to the original suit, and that the joinder of an interested party should serve the interests of justice by facilitating a full and fair determination of the dispute. The Court of Appeal in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR further observed that the court's power to join parties is discretionary and must be exercised judiciously, taking into account whether the presence of the proposed party is necessary for the effectual adjudication of the matter and whether prejudice would be occasioned by non-joinder. Similarly, in Skov Estate Limited & 5 Others v Agricultural Development Corporation & Another [2015] eKLR, it was observed that courts should be willing to join parties whose presence is necessary to enable complete and effectual determination of all questions in controversy, provided such joinder does not unduly delay or prejudice the existing parties. **ANALYSIS AND DETERMINATION** The Applicant submits that the DCI has a demonstrable interest by virtue of its ongoing or concluded investigations into the alleged fraud pertaining to the suit property. The DCI's mandate is prescribed under Section 35(1)(a) of the National Police Service Act, which empowers it to investigate serious crimes, and under the Criminal Procedure Code (Cap. 75, Laws of Kenya) which regulates the conduct of criminal investigations and the production of evidence. The 1st and 2nd Defendants/Respondents contest this by arguing that the DCI has not filed the application itself and has shown no demonstrable stake in the civil proceedings. They further argue that the application was not accompanied by the OB number or formal complaint giving rise to the investigations, thereby casting doubt on whether any investigation was ever initiated. This Court notes that the DCI's interest in the proceedings, to the extent one exists, is of a functional and institutional nature: as an investigative body, its mandate is to investigate crimes and make findings, not to assert proprietary or legal rights in property. The Applicant's true objective is not to join the DCI as a party with rights to defend or enforce, but rather to compel the production of investigative findings before the Court. On a proper analysis, the DCI's "stake" as articulated by the Applicant is not a stake in the subject matter of the suit — being the disputed land title — but rather a stake in the determination of the proceedings by virtue of holding evidence relevant thereto. This is a material distinction. The established threshold for joinder requires a recognisable legal or equitable stake in the subject matter of the suit, not merely the possession of relevant evidence. The Court accepts that there is an ongoing substantive dispute regarding the transfer of parcel No. MBEERE/WACHORO/1618 and that allegations of fraud form the gravamen of the Applicant's case. To the extent that the DCI has conducted investigations into the said transfer, its findings may be relevant to the question of fraud. However, relevance of evidence is not the same as a proximate legal interest in the subject matter. A proximate interest in the context of joinder means that a party's legal rights, obligations, or entitlements will be directly affected by the outcome of the suit. In this case, whatever decision this Court makes — whether it orders rectification, cancellation of title, or dismisses the suit — the DCI's institutional existence, statutory mandate, or legal rights will not be directly affected. Its interest is therefore remote rather than proximate in the legal sense. This Court must also address the weighty constitutional concerns raised by the 1st and 2nd Defendants/Respondents. Under Article 157 of the Constitution of Kenya, 2010, the Director of Public Prosecutions (DPP) has the exclusive constitutional mandate to institute and conduct criminal proceedings against any person. Article 157(10) expressly provides that the DPP shall not require the consent of any person or authority before exercising those powers. Critically, Section 35 of the National Police Service Act requires that the DCI, upon concluding its investigations, forward its findings and recommendations to the DPP for the latter's consideration and determination as to whether to prefer charges. The DCI's investigative report is an internal document generated in the course of a criminal investigation and is ordinarily subject to the oversight and gatekeeping role of the DPP before it enters the public domain through prosecution proceedings. To order the DCI to produce its investigation report directly before this civil court, without the DPP's involvement or sanction, risks the following: (i) prejudicing any ongoing or contemplated criminal prosecution; (ii) circumventing the constitutional role of the DPP; (iii) exposing witnesses and investigative methodologies before criminal proceedings are concluded; and (iv) potentially rendering the criminal investigation nugatory. This Court must be cautious not to exercise its civil jurisdiction in a manner that usurps or undermines the constitutionally-designated functions of other organs of State. It must be emphasised that this Court's reluctance to join the DCI as an Interested Party for the purpose of compelling production of its report is not a finding that such report is irrelevant or inadmissible. The Applicant’s procedural avenues for obtaining the DCI report if and when it becomes available lies elsewhere. The Applicant submits that without the DCI's report, the Court will be deprived of vital evidence on the issue of fraud. While the Court appreciates this concern, the burden of proving fraud in the transfer of MBEERE/WACHORO/1618 rests on the Applicant and can be discharged through primary evidence including, inter alia, the testimony of the registered proprietor at the relevant time, land registry officials, witnesses to the impugned transactions, expert evidence on the questioned documents, and any other evidence in the Applicant's possession or obtainable by lawful means. The non-joinder of the DCI at this stage does not foreclose the Applicant from prosecuting its case on fraud, nor does it prevent the Court from rendering a complete determination on the issues in controversy. Justice will not be rendered incomplete solely by the absence of the DCI as a formal party. Having carefully considered the Application, the Replying Affidavit, the respective written submissions, and the authorities cited, this Court arrives at the following conclusions: 1. The Applicant has not met the established threshold for joinder of the DCI as an Interested Party. The DCI does not have a defined, recognisable, and proximate legal stake in the subject matter of this suit — being the ownership and title to land parcel No. MBEERE/WACHORO/1618. 2. The true object of the Application is the procurement of the DCI's investigation report for use as evidence in these proceedings. This objective, while understandable, does not justify formal joinder of the DCI as an Interested Party, as it conflates the concept of a party with a stakeholder interest in the subject matter with the role of a witness in possession of relevant evidence. 3. An order compelling the DCI to produce its investigation report by virtue of joinder as an Interested Party risks encroaching upon the constitutional mandate of the Director of Public Prosecutions under Article 157 of the Constitution and undermining ongoing or contemplated criminal proceedings. 4. Adequate and appropriate procedural mechanisms exist under the Civil Procedure Act and Rules by which the Applicant may seek to compel production of the DCI's report at the appropriate juncture, without the necessity of joinder. Accordingly, the Chamber Summons Application dated 13th November 2025 is hereby dismissed. The parties are directed to take steps to progress the main suit expeditiously. Costs of the Application shall be in the cause. Orders accordingly. **DATED, DELIVERED AND SIGNED AT EMBU THIS 28TH DAY OF MAY, 2026.** **HON. E.C CHERONO** **ELC JUDGE, EMBU** In the presence of: 1. Mr. Kihiko appearing with Mr. Ogango for the Plaintiff/Applicant 2. M/S Gitau H/B for Mr. Kiongo for the 3rd and 4th Defendants/Respondents 3. 1st and 2nd Defendants/Advocate-absent 4. Interested party/Advocate-absent 5. M/S Ruth C/A