https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5286

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND AT NAIROBI** **ELC NO. E235 OF 2023** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **TROY MEDICARE PHARMACY LIMITED - PLAINTIFF** **VS** **PEKEE DEVELOPMENTS LIMITED - DEFENDANT** **ROYAL PALMS MUSTARD** **LIMITED - INTENDED 2ND DEFENDANT/APPLICANT** **RULING** 1. Vide a notice of Motion dated the 30/1/26, the Intended 2nd Defendant moved the court and sought the following orders; 2. This Honourable Court be pleased to order that this Application be heard and determined on a priority basis, before the hearing of any other matter in this suit, in view of its nature and the urgency that arises from the Applicant’s current procedural limitation as an Interested Party. 3. This Honourable Court be pleased to review and/or vary its Order issued on **9th October 2023**, so as to correct the designation of the Applicant, **ROYAL PALMS MUSTARD LIMITED**, from that of the **2nd Interested Party** in this suit to that of the **2nd Defendant**. 4. Consequent to **prayer 2** above, this Honourable Court be pleased to order that all pleadings, processes, and records of this Court in **ELC Suit No. E235 of 2023** be and are hereby amended to reflect the joinder and correct designation of **ROYAL PALMS MUSTARD LIMITED** as the 2nd Defendant, and that all future proceedings be conducted accordingly. 5. The Honorable Court be and is hereby pleased to issue any further directions or orders as may be appropriate to give effect to the orders sought herein. 6. The applicant affirms that it is currently identified as the 2nd interested party in the litigation and that its involvement in this matter arises from a legitimate and binding commercial transaction. Under a lease agreement dated 13 July 2023, entered into between the applicant and the defendant/second respondent, Peekee Developers Limited, the defendant lawfully leased to the applicant all the property designated as LR No 209/1829 [the suit premises]. The lease agreement was for a fixed term of ten years and six months, commencing on 13 July 2023 and terminating on 31 January 2034, with no premature determination outside the express covenants for re-entry. 7. It is averred that under the lease agreement, the applicant remitted a substantial security deposit of Kshs 8.4 million to the defendant. The applicant took vacant possession of the premises on 13 July 2023, with the defendant's explicit assurance that no claims or encumbrances were pending. Since then, the applicant has made significant investments in the premises for commercial purposes. The applicant's status as a head tenant was acknowledged by the subtenants, who have consistently paid rent since July 2023. All rental payments due to the defendant have been duly honoured by the applicant since occupying the premises. Consequently, the applicant is presently involved in the ongoing litigation between the plaintiff and the defendant, which primarily concerns rights over the suit property lawfully occupied by the applicant. Should the remedies sought be granted, the applicant risks eviction and the potential compromise of its leasehold interests. 8. To safeguard its interests and establish its claim, the applicant filed ELC E032 of 2023 – Royal Palms Mustard Limited Vs Try Medicare Pharmacy Limited & Peekee Developers Limited, in which the applicant, acting as the plaintiff, sought declaratory and injunctive relief to affirm its leasehold interests against the defendants. 9. Upon the consolidation of the present suit with ELC E032 of 2023 on October 9, 2023, the applicant was designated an interested party rather than a defendant, despite its central and adversarial position in the dispute. This designation has posed challenges for the applicant, which had earlier sought substantive relief in ELC E032 of 2023, thereby hindering its ability to effectively defend and assert its legal and proprietary interests in the consolidated case as an interested party. The role of an interested party is limited, and such a party cannot formulate its own issues or introduce substantive matters for determination. Consequently, the plaintiff and the defendant are the primary parties to the contentious suit, and the issues for resolution arise from the dispute between the main parties, namely the defendant and the plaintiff. 10. The dispute between the plaintiff and the defendant concerns the right to occupy the suit premises. The applicant’s assertion of a valid leasehold interest is pivotal to the matter; however, as an interested party, it cannot raise this issue before the court unless it is formally designated as a defendant. The applicant, being lawfully in occupation, should not remain an incidental participant but ought to be a principal party in the dispute. The outcome of the case between the plaintiff and the defendant will directly affect the applicant’s consequential interest. Including the applicant as a defendant will enable it to file a defence and counterclaim, thereby asserting its leasehold interest and seeking the appropriate declaratory and injunctive relief to safeguard its investments. 11. Among other considerations, designating the applicant as a defendant will enable the court to identify the correct and comprehensive issues for trial, including the applicant's leasehold rights. This will facilitate the final and binding determination of all competing claims over the suit property in a single consolidated proceeding. No prejudice will be suffered by the plaintiff or the defendant, except for costs that can be adequately compensated. Conversely, it is asserted that the applicant will suffer significant and irreparable prejudice, as its claim will not have been effectively resolved. Further, it is crucial that the pending applications be adjudicated once the applicant has been designated as a defendant, ensuring that all issues, including the right to possession of the property, are determined simultaneously. 12. The application is contested by the Plaintiff in the reply affidavit of Rosemary Mutheu Muathe, the sole director of the Plaintiff herein, who averred that the applicant acts as a proxy for the defendants, having been invited into the proceedings with the intent to frustrate and delay the resolution of the matter. Furthermore, it is asserted that the applicant is pursuing the defendants' interests under the guise of a separate and independent suit. It is also argued that there is no urgency in the application, given that the applicant waited two years before filing it. 13. Contrary to any presumption, it is the applicant who, on 10 September 2023, requested to be enjoined as an interested party, and it is inappropriate for it to now contend that it has been improperly designated. It voluntarily sought the status of an interested party and cannot be permitted to approbate and reprobate. It has, for the past two years, participated in the proceedings as an interested party without any objection whatsoever. There is no explanation for the inordinate delay in bringing this application. No discovery of new and/or important evidence that was not within its knowledge at the time the order was made. The applicant's application stems from a change in litigation strategy, which does not constitute a valid ground for review under the law. No error on the face of the record has been established either, it was contended. 14. The defendant acknowledged that the applicant is a tenant of the defendant and that any rights arise from a lease agreement between the defendant and the applicant, not from the Plaintiff. The Plaintiff's claim against the Defendant is for trespass and unlawful dispossession, and the Plaintiff seeks repossession of the suit premises. Consequently, the remedies available to the applicant are directed against the defendant, not the Plaintiff. The Plaintiff is not a party to the lease agreement between the applicant and the defendant and makes no admission of liability. The alleged sum of Kshs 8.4 million paid by the applicant to the defendant is a matter strictly between the applicant and the defendant. The applicant's lawsuit in ELC E032 of 2023 was consolidated with this suit, thereby enabling the applicant to fully participate in the proceedings. The applicant's attempt to redesignate itself is a strategy to complicate and delay the resolution of the suit, thereby prejudicing the applicant and causing suffering and loss. The court was urged to disallow the application. 15. I have read and considered the written submissions of the parties as filed. 16. The key issue is whether the application has merit, that is, whether the court should review and/or vary the orders issued on 9/10/23 and enjoin the applicant as a defendant. 17. The substantive powers for reviewing a judgment or an order made by a court are set out in Section 80 of the Civil Procedure Act, while Order 45 of the Civil Procedure Rules 2010 sets out the procedural requirements. Pursuant to these provisions, the grounds for review are as follows. 18. Discovery of new and important matter or evidence 19. Mistake or error apparent on the face of the record; or 20. Any other sufficient reason. 21. In this case, it is averred that the applicant was enjoined in the suit as an interested party following the consolidation of its suit in ELC E 032 of 2023 with the instant suit. It is to be noted that the consolidation and designation were by consent of the parties. 22. I have reviewed the pleadings concerning the plaintiff and the current plaintiff and defendant, who are respectively the 1st and 2nd defendants. The applicant states that the suit lands are owned by the 1st Defendant herein, who has entered into a long-term lease agreement. The defendants assert possession of the suit property based on a dispute arising from a previous tenant-landlord relationship, which conspicuously disregards the applicant's vested interest arising from the long-term lease agreement with the Defendant in this matter. Consequently, the applicant requests orders affirming that it is entitled to exclusive possession and/or peaceful enjoyment of the entire suit land for the duration of the lease; and a permanent injunction restraining the defendants from interfering with its quiet possession of the suit premises throughout the lease term. 23. In the current legal proceeding, the Plaintiff has instituted a suit against the Defendant, seeking judicial declarations that any attempt to reassert possession of and/or remove the Plaintiff from the premises is illegal, irregular, and unlawful. Furthermore, the Plaintiff requests an order declaring that any such attempt by the Defendant and/or any third party is null and void. The Plaintiff also seeks an order requiring the Defendant to compensate for loss of income, goodwill, and investments made in the premises, should the Defendant proceed with eviction. Additionally, the Plaintiff requests a permanent injunction restraining the Defendant from claiming under it, evicting the Plaintiff and/or subtenants, retaking possession of the property, and/or altering the ownership structure of the property in a manner that undermines the Plaintiff's investments and interests. 24. Order 1 rule 10(2) of the Civil procedure Act provides 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 in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added” 1. There is no doubt that the parties are contesting various rights and interests in the suit land. It is admitted that the applicant is in possession of the suit land. Therefore, the applicant is a necessary party for the effective and complete adjudication of the issues in the suit. It is good public policy that litigation must come to an end; hence the need for consolidation. It would be a wasteful use of judicial resources to adjudicate the current suit only for the applicant's dispute to remain unresolved. Public policy calls for the final and complete adjudication of suits in one proceeding. 2. As stated earlier, the parties did not oppose the consolidation. Unless the applicant is designated or enjoined as a defendant in this suit, which now forms the consolidated suit, the suit will remain unadjudicated. In my view, the applicant should be designated as the 2nd defendant for the reasons advanced above. 3. For that reason, the orders of 7/10/24 are hereby reviewed for other sufficient reasons, namely to enable the court to adjudicate the matter effectively and wholly on the merits. 4. **Final orders for disposal;** 5. This Honourable Court hereby reviews and/or varies its Order dated 9th October 2023, so as to correct the designation of the Applicant, ROYAL PALMS MUSTARD LIMITED, from the 2nd Interested Party in this suit to the 2nd Defendant. 6. Consequent to the above prayer, it is hereby ordered that all pleadings in ELC Suit No. E235 of 2023 be amended to reflect the joinder and the correct designation of ROYAL PALMS MUSTARD LIMITED as the 2nd Defendant, and that all future proceedings be conducted accordingly. 7. The costs of the application shall be borne by the Applicant. 8. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 14TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered virtually in the presence of:** 1. Messrs Kimani Horeria, Mr Wekesa & Dr Musinga for the Plaintiffs 2. Mr Gisemba for the Defendant and HB for Mr Miano for the Interested Party 3. C.A – Mr. Amos