https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4170

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCC NO. E431 OF 2021** **MERCY WANJIRU……………….........................………1ST PLAINTIFF/RESPONDENT** **PETER MAINA NDEGWA…….......................………..2ND PLAINTIFF/RESPONDENT** **-VERSUS-** **CICILIAH TUMBO……………….........................……1ST DEFENDANT/RESPONDENT** **GILBERT OMWENGA………….......................…….2ND DEFENDANT/RESPONDENT** **JONNAH NZIOKA...............................................3RD DEFENDANT/RESPONDENT** **SIMON MAINA....................................................4TH DEFENDANT/RESPONDENT** **JOSEPH MATHENGE MWAI….............................5TH DEFENDANT/RESPONDENT** **HARUN WACHIRA……………….........................….6TH DEFENDANT/RESPONDENT** **PETER MARIRA GIKONYO…..........................…..7TH DEFENDANT/RESPONDENT** **WYCLIFFE ONYANGO…….……............................8TH DEFENDANT/RESPONDENT** **ANTONY KILONZO………….….........................…..9TH DEFENDANT/RESPONDENT** **WILFRED KIPTUM KITUR KIMALAT** **(sued as the duly appointed attorney of** **JAMES KIPKOECH).……………......................……10TH DEFENDANT/RESPONDENT** **AYUB ASINASIO ANGACHI….............................11TH DEFENDANT/RESPONDENT** **EMILY ADHIAMBO MAKUNDA……..………………12TH DEFENDANT/RESPONDENT** **AND** **KENNETH OTIENO ODUOL……...……INTENDED 13TH DEFENDANT/APPLICANT** **GERALD WABACHA…........................INTENDED 14TH DEFENDANT/APPLICANT** **GEORGE MUUTI BETH…….………….INTENDED 15TH DEFENDANT/APPLICANT** **RULING** 1. Before me is the notice of motion dated 31st January, 2025 filed by the intended defendants/applicants, and it is expressed to be brought under **Articles 50(1)** and **159(2)(d)** of the **Constitution, Sections 1A, 1B and 3A** of the **Civil Procedure Act, Section 68** of the **Land Registration Act** and **Order 1 Rule 10(2)** of the **Civil Procedure Rules** seeking the following orders:- 2. ***Spent.*** 3. ***That this honourable court be pleased to grant leave to the applicants to be enjoined in the instant suit as defendants.*** 4. ***That upon joinder, this honourable court be pleased to grant leave to the applicants to submit pleadings and written submissions to the pleadings filed in the instant suit.*** 5. ***That the honourable court do issue an order of inhibition stopping further dealings, registration and transactions over*** ***Parcel No. Nairobi Block 107-Umoja II Zone 9 whether registered as NAIROBI/BLOCK 107/1131 and/or NAIROBI/BLOCK 107/1/1131 pending hearing and determination of the main suit.*** 6. ***That the honourable court be pleased to issue an order of status quo preserving the suit property Parcel No. Nairobi Block 107-Umoja II Zone 9 whether registered as NAIROBI/BLOCK 107/1131 and/or NAIROBI/BLOCK 107/1/1131 pending hearing and determination of the main suit.*** 7. ***That the costs of this application be in the cause.*** 1. The application is premised on the grounds on its face. It is further supported by the affidavit of George Muuti Beth, the intended 15th defendant/applicant sworn on even date. He deposed that together with the 13th and 14th intended defendants/applicants’ they were members and residents of Umoja II Zone 9 Self Help Group, and beneficial owners of plots 33, 59, and 78 where they have established homes and businesses. 2. He further deposed that they learnt during the festive season in December 2025 of a planned demolition exercise intended to evict them. He added that the same had been orchestrated by individuals who claimed ownership of parcels ostensibly excised from their land. 3. He went on to depose that upon investigation, they discovered that few individuals held titles for large parcels (over one acre each) registered as Nairobi/Block 107/1118to1134, which they claimed were irregularly obtained. The intended 15th defendant/applicant deposed that Umoja estate was commissioned in the early 1980s as a high-density, low-cost housing project funded by the World Bank and that due to funding constraints, Zone 9 was eventually replanned into 294 plots for deserving allottees. 4. The intended 15th defendant/applicant deposed that in 2008, it was discovered that 17 individuals had irregularly obtained lease documents for (1–2 acres) for private residential use, which was inconsistent with the area’s high-density zoning, and that the city council of Nairobi subsequently passed a resolution and revoked the17 irregular allocations and directed the settlement of the 294 intended allottees. 5. Further, that they discovered the existence of this lawsuit concerning Nairobi/Block 107/1131, which overlapped with their allocated plots. He deposed that the said suit was an attempt to clandestinely use the court to legitimize fraudulent titles and overturn the lawful resolutions of the city council. 6. He deposed that the intended defendants/applicants faced an imminent risk of being rendered destitute if the proceedings continue without their participation. He further deposed that the litigants’ purported titles lacked records of lawful issuance. 7. In conclusion, he urged the court that their joinder will enable the court effectively and completely adjudicate all issues and prevent injustice that would subject them and their families to immense turmoil. 1. The application was opposed vide the 1st to 10th defendants/respondent’s replying affidavit sworn by Cicilia Tumbo, the 1st defendant/respondent on 12th March, 2025. She deposed that Nairobi city council leased the property title no. Nairobi/Block 107/1/1131 to James Kipkoech Kimalat for a term of 99 years from 1st January, 1994. 2. She further desposed that the suit property was subsequently subdivided and leasehold interests transferred to several defendants/respondents who have occupied the land and erected permanent structures for over 15 years. The 1st defendant/respondent deposed that the intended defendants/applicants relied on the allotment letters and failed to produce any valid lease agreement or certificate of lease that showed they were the beneficial owners. 3. Further, that the intended defendants/applicants relied on government proposals and recommendations that never materialized into legal property rights. She further deposed that the intended defendants/ applicants brought the applicationtoo late in the day and that their inclusion would only delay its resolution. Further, that they were already aware of the case through newspaper advertisements, and the judgment of 2019 in Milimani MCCC No. 10424 of 2018 had declared James Kipkoech Kimalat as the genuine proprietor of the suit property. 4. The 11th and 12th defendants/respondents filed their grounds of opposition dated 20th October, 2025 challenging the instant application on the following grounds:- 5. ***That the application by the 13th, 14th, and 15th defendants is opposed. It is misconceived, incompetent, and an abuse of the court process. It raises issues that are wholly extraneous to the subject matter of this suit and introduces a new cause of action that fundamentally alters the character and scope of the existing proceedings.*** 6. ***That the issues raised in the said application are novel and unrelated to the substratum of this suit. The matters complained of by the applicants do not arise from the pleadings, the evidence on record, or the reliefs sought by any of the existing parties. The proper forum for ventilation of their alleged grievances lies in a separate and distinct suit, not by way of joinder or intervention in a matter that has substantially been concluded.*** 7. ***That the suit herein has compromised by consent of the parties filed on 9th June, 2025.*** 8. ***That the applicants, being intended defendants and not parties to the consent or to the substantive suit, have no locus standi to challenge, vary, or in any way oppose the said consent. In law, a person who is not a party to a consent cannot purport to impugn or frustrate it.*** 9. ***That the application amounts to a fishing expedition and a wild goose chase designed to reopen and delay the finality of litigation. It offends the overriding objectives of the court under Sections 1A and 1B of the Civil Procedure Act, which require the expeditious, proportionate, and affordable resolution of civil disputes.*** 10. ***That the applicants have no reasonable cause of action or identifiable legal right against the existing parties to this suit. Their alleged grievances are distinct, speculative, and incapable of being adjudicated within the framework of this matter without prejudicing the rights of parties who have already settled their dispute by consent.*** 11. ***That equity and substantive justice frown upon the re-litigation of settled matters. Once parties have resolved their differences and have a lawful consent, equity demands finality in litigation. The court should not countenance efforts aimed at reopening closed chapters to the detriment of parties who have chosen peace over perpetual contestation.*** 12. ***That it is contrary to the principles of fairness, equity, and judicial economy to allow intended parties to derail a concluded matter under the guise of raising "novel issues." The court must guard its process from misuse and preserve the sanctity of consensual settlements.*** 13. ***That a party cannot be denied the right to resolve their disputes amicably and conclusively. To entertain the applicants’ intervention would defeat the very essence of access to justice under Article 159(2)(c) of the Constitution, which encourages the promotion of alternative dispute resolution mechanisms, including settlement by consent.*** 1. The plaintiffs/respondents filed their grounds of opposition dated 18th February, 2026 challenging the same application on the following grounds: 2. ***The application for joinder is misconceived and untenable in law as it*** ***seeks to introduce a distinct and independent cause of action, wholly separate from the issues presently before the court. It is trite that parties cannot be enjoined to a suit for the purpose of fundamentally altering its character or introducing an entirely new dispute.*** 3. ***The intended applicants have demonstrated no legally cognizable right or relief arising from the subject matter of the suit. They do not hold title to the property in question and, consequently, lack any proprietary or enforceable interest capable of grounding their participation. The present dispute is strictly between registered title holders, and the intended defendants are neither necessary nor proper parties.*** 4. ***The application is inordinately and unjustifiably delayed. The substantive parties herein have already resolved their dispute and are merely awaiting the formal recording of a consent. The belated attempt at joinder is therefore an afterthought and an abuse of the court process.*** 5. ***No prejudice whatsoever will be occasioned to the intended applicants if the application is declined, as they remain at full liberty to institute an independent and properly constituted suit to ventilate any alleged claim they may have.*** 6. ***The application is frivolous, lacks merit, and is intended only to delay the finalization of a matter that has already been amicably settled.*** 7. By the time of writing this ruling, none of the parties had filed their written submissions. Be that as it may, I have considered the application, the replying affidavit and the grounds of opposition thereof filed by the parties. The issue for determination is *whether the intended 13th, 14th and 15th defendants/applicants ought to be joined in this suit*. 8. **Order 1 rule 10(2)** of the **Civil Procedure Rules** 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. The Court of Appeal in **Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR** quoted as such:- ***“In the case of Gurtner vs Circuit (1968) I All ER 328 it was held that, a party may be enjoined if he can demonstrate that any order in the action would directly affect him either legally or financially. (Denning, M.R.) stated thus:*** ***“…The bureau clearly had a commercial interest in resisting the declaration; but that is not enough. John Stephenson J accepted the analysis of the rule and the many previous decisions under it contained in the exhaustive judgment of Devlin, J., in A Amon vs Raphael Tuck & Sons, Ltd. (1956) 1 All ER 273 and took the view that the court had no jurisdiction to add a party against the will of the plaintiff unless the person seeking to be added was:*** ***“…at least able to show that some legal right enforceable by him against one of the parties to the action or some legal duty enforceable against him by one of the parties to the action will be affected by the result of the action…”*** ***…The only reason which makes it necessary to make a person a party to an action is so that he may be bound by the result of the action, and the question to be settled therefore, must be a question in the action which cannot be effectively and completely settled unless he is a party…”*** ***Clearly the rules of natural justice require that a person who is to be bound by a judgment in an action brought against another party and directly liable to the plaintiff on the judgment should be entitled to be heard in the proceedings in which the judgment is sought to be obtained.”*** 1. The measure of whether a party should be joined to a civil suit is that their presence is necessary to effectually and completely adjudicate upon and settle all questions involved in the suit, or any action in the suit would affect the party legally or financially. The intended defendants/applicants’ contended that being residents of Umoja II Zone 9 self-help group and owners of plots 33, 59 and 78 where they have established homes and businesses, they are necessary parties to the suit. Further, that they discovered that people are claiming ownership of parcels which seem to overlap with their plots, and on following up with the local administration, they learnt that there are individuals who hold titles to Nairobi/Block 107/1118 to 1134. 1. The 1st to 10th defendants/respondents on the other hand opposed the said joinder on grounds that the intended defendants/applicants relied on allotment letters but failed to produce any valid lease agreement or certificate of lease that showed they were the beneficial owners. Further, that they relied on government proposals and recommendations that never materialized into legal property rights. 2. The 11th to 12th defendants/respondents and the plaintiffs/respondents contend that the application soughtto introduce a distinct and independent cause of action which was separate from the issues presently before the court. 3. I have perused the documents relied on by the intended defendants/applicants and they have annexed copies of allotment letters as proof of ownership of their respective plots. Their allocation of these allotment letters has not been challenged, and it is immaterial at this stage whether or not they have a certificate of title. I am satisfied that they have an identifiable stake in these proceedings that require their joinder as defendants. It is likely that the final determination of this matter will have a direct impact on the intended defendants/applicants and therefore it is necessary that they be joined as defendants in the suit. Moreover, the case is yet to be determined and it is my view that the defendants/respondents and the plaintiffs/respondents do not stand to suffer any prejudice as a result of the joinder. 4. From the above, I find merit in the notice of motion dated 31st January 2025 and it is allowed in the following terms: 5. ***The intended defendants/ applicants are hereby joined to this suit as the 13th, 14th and 15th defendants and granted 14 days from the date hereof to file and serve their defence/counterclaim if need be together with accompanying documents.*** 6. ***Upon service, the plaintiff and the 1st to 12th defendants are granted 14 days to file and serve their pleadings in response if need be.*** 7. ***An order of status quo prevailing being Parcel No. Nairobi Block 107-Umoja II Zone 9 whether registered as Nairobi/Block 107/1131 and/or Nairobi/Block 107/1/1131 is hereby issued preserving the suit property pending the hearing and determination of the suit.*** 8. ***Each party to bear its own costs.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS 6TH DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **06/07/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Ms. Komer for the 1st to 7th & 9th to 10th Defendants/Respondents* *No appearance for the Plaintiffs/Respondents* *No appearance for the intended Defendant/Applicant*