https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5015

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELCLC E118 OF 2025** **THE CHURCH COMMISSIONERS FOR KENYA………………. PLAINTIFF** **VERSUS** **KASIMU DUME……………….……………………………….…1ST DEFENDANT** **AMOSS THOYA……………….……………….……………….…2ND DEFENDANT** **STEPHEN TESI……………….……………….……………….…3RD DEFENDANT** **PURITY TEMBE……………….……………….……………….…4TH DEFENDANT** **PETER VUKO……………….……………………….………….…5TH DEFENDANT** **NOOR KASSIM……………….………………………….……….6TH DEFENDANT** **HAMISI LPDAH……………….…………………………….…….7TH DEFENDANT** **IBRAHIM GACHIHI………….…………………………….….…8TH DEFENDANT** **RAYNOLDS MWALUKOMBE…………………………….….…9TH DEFENDANT** **MARTIN TSUI……………….………………………………...…10TH DEFENDANT** **LILIAN BAYA……………….……………………………….……11TH DEFENDANT** **JOHN FURAHA……………….…………………………….…...12TH DEFENDANT** **NELSON KITSAO…………….…………………………………13TH DEFENDANT** **CARLSON DAVID BAYA…………...…………PROPOSED 14TH DEFENDANT** **AND** **THE COUNTY GOVERNMENT** **OF KILIFI…………………….………. PROPOSED 1ST INTERESTED PARTY** **THE NATIONAL LAND** **COMMISSION………………….………PROPOSED 2ND INTERESTED PARTY** **LAND REGISTRAR, KILIFI** **LAND OFFICE PROPOSED………………….………3RD INTERESTED PARTY** **RULING** 1. The Plaintiff avers that it holds a valid title to land title number C.R 82454 situated in Kaloleni within Kilifi County and has been in occupation of the same after being granted ownership in 1904 by the King Edward during the colonial era. 2. The Court had earlier on issued an interlocutory injunction restraining the Defendants herein from interfering with the Plaintiff’s quiet possession of the suit property pending the hearing and determination of the main suit. 3. The Defendants have now moved this Court through their application dated 13th January 2026 seeking, among others, to have Carlyson David Baya joined to the suit as the 14th Defendant therein. 4. On the face of the application and in the Affidavit in support thereof sworn by the proposed 14th Defendant, Mr. Carlson David Bay, is the administrator of the estate Baya Msanzu who was the owner of the said suit property. 5. It is the Defendant’s contention that the deceased leased the suit property to the Plaintiff and he was collecting rent in his capacity as the owner therein at the time of his death. 6. Further, the Defendants aver that it is the late Baya Msanzu who engaged the missionaries who set up the Plaintiff’s successor company and eventually agreed on the terms of leasing out of the suit property to them. However, he avers that the Plaintiff connived with the proposed interested parties to dispossess the late Baya Msanzu of the suit property 7. The Defendants therefore seek that the following parties be joined to the suit as interested parties: 8. ***The County Government of Kilifi;*** 9. ***The National Land Commission; and*** 10. ***The Land Registrar Kilifi Land Office***, 11. In response to the application, the Plaintiff filed Grounds of Opposition dated 20th May 2026. In essence the Plaintiff opposes the joinder of the proposed defendants 12. The court directed that the application be canvassed by way of written submissions and both parties filed their submissions which I have considered. ***Analysis and Determination*** 1. The procedure invoked by the Defendants herein is set out under Order 1 of the Civil Procedure Rules on “Parties to a Suit”. The order, contains guiding provisions for parties that wish to be joined to a suit as follows: 2. Order 1 Rule 3 : *All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.* 1. Order 1 Rule 5 further provides that: *It shall not be necessary that every defendant shall be interested as to all the relief claimed in any suit against him.* 1. Order 1 rule 10(2) of the said Civil Procedure Rules, 2010 provides that: *The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”* 1. **Nambuye, J** (as she then was) in the case of **Kingori vs. Chege & 3 Others [2002] 2 KLR 243**provided guiding principles for joinder of a proper party in a suit thus**:** 2. *“He must be a necessary party;* 3. *He must be a proper party;* 4. *In the case of the defendant there must be a relief flowing from that defendant to the plaintiff;* 5. *The ultimate order or decree cannot be enforced without his presence in the matter; and* 6. *His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit”.* 7. The issue was also the subject of consideration by this Court in **Meme v. Republic [2004] KLR 637**where it was held that joinder of parties will be permissible: 8. “*Where the presence of the party will result in the complete settlement of all the questions involved in the proceedings;* 9. *Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and* 10. *Where the joinder will prevent a likely course of proliferated litigation.”* 11. From the facts presented in the application by the Defendants, this Court finds that the proposed 14th Defendant raises sufficient cause that meets the threshold set out in the above authorities and provisions of the law. 12. By asserting that he is the administrator of the estate of the previous owner of the suit property herein the proposed Defendant’s presence in the suit is necessary to enable this Court to effectively adjudicate on the contested issue of ownership of the suit property. 13. The addition of the proposed 14th Defendant to the suit will trigger an amendment of the pleadings so that each of the parties can stake their claim or defend themselves against any claim made by the added party. 14. The Court is of the view that no prejudice will be suffered by any of eh parties should the application be for joinder and amendment of the pleadings be allowed. 15. The Court of Appeal adopted the same approach in **Central Kenya Ltd. V. Trust Bank & 4 Others, CA. No. 222** **of 1998***,* when it affirmed that the guiding principle in amendment of pleadings and joinder of parties is as follows: “*Hence the guiding principle in applications for leave to* *amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see,* ***Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464).***” 1. This Court is also called upon to consider whether the County Government of Kilifi, the National Land Commission and the Land Registrar, Kilifi Land Office should be added as 1st to 3rd interested party in the Suit. 2. To the extent that the prayers in the draft Defence by the proposed 14th Defendant seek adverse orders against the proposed interested parties, it would be in order to bring in the said interested parties as co-defendants. This Court notes that the proposed Defendant has a Counter Claim against the proposed interested parties and it would therefore be proper join the said parties to enable the proposed 14th Defendant prosecute his claim against them. 3. In **Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR,** Mativo. J. explained when an interested party ought to be joined in proceedings. He stated that : - ***“A person is legally interested in the proceedings only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is apparent that a party claiming to be enjoined in proceedings must have an interest in the pending litigation, but the interest must be legal, identifiable or demonstrate a duty”.*** 1. The role of an interested party vis a vis that of a defendant was distinguished in the Court of Appeal case of **Pravin Bowry –Versus-JohnWard and Another [2015] eKLR** where the Court of Appeal set out the principles to be considered in an application for joinder of parties to a suit. The court referred to the Ugandan case of Deported **Asians Property Custodian Board v. Jaffer Brothers Limited (1999) I EA 55 (SCU)** where the court stated as follows: *“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 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.”*(emphasis by underline). 1. In view of the foregoing, I allow the Defendant’s application dated 13th January 2026 and make the following orders: 2. **The proposed 14th Defendant is joined to the suit as the 14th Defendant and the proposed 1st, 2nd and 3rd Interested parties are joined to the suit as interested parties. The Plaintiff is directed to amend its pleadings accordingly;** 3. **Leave is hereby granted to the proposed 14th Defendant to file his Defence and Counter Claim and effect service of the same on all the other parties within fourteen (14) days from the date hereof; and** 4. **The costs of the application shall be in the cause.** **Dated, signed and delivered, virtually at Malindi this 21st day of July 2026** **J. M. ONYANGO** **JUDGE** **In the presence of:** **Mr. Mangaro for All the Defendants Except 8th Defendant** **Mr. Mugambi for the Plaintiff** **Mr. Okinyi for the 8th Defendant** **Court Clerk: Happy** **In the Absence of:** **Interested Party**