Wega Holdings Limited v Murigu & another (Environment and Land Case E215 of 2026) [2026] KEELC 5218 (KLR) (6 August 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI** **ELCLC CASE NO E215 OF 2026** **WEGA HOLDINGS LIMITED……………………………………PLAINTIFF/APPLICANT** **-VERSUS-** **MARGARET NYAKINYUA MURIGU………..……………DEFENDANT/RESPONDENT** **AND** **JAMES KIMANI HORERIA…………..……………….PROPOSED INTERESTED PARTY** **RULING** **Introduction** 1. The Applicant has filed the Notice of Motion application dated 2ndJune 2026 for joinder seeking the following orders 2. **Spent.** 3. **Spent.** 4. **THAT** this Honourable Court be pleased to review/and or vary its ex parte orders issued on the 22nd May 2026 and all consequential orders arising therefrom to be set aside, varied and/or discharged pending hearing and determination of this application. 5. **THAT** pending hearing and determination of this application, the plaintiff, the defendant, their agents, servants, employees or anyone acting under their authority be restrained from entering upon, alienating, transferring, developing, interfering with or in any manner disturbing the interested party’s occupation and use and quiet possession of the said portion of Land reference no 20528 Garden estate Ruaka. 6. **THAT** consequent to prayer 3 above, this court be pleased to order that all pleadings, processes and record of this court in this suit be amended to include the joinder and proper designation of the applicant as an interested party and that all future proceedings to be conducted accordingly. 7. Costs of the suit. 8. The application was premised on grounds as in the supporting affidavit by the applicant. He deponed that he has been in open, peaceful and uninterrupted possession of the suit property for a period of 30 years. That the subject property has been the subject of various litigation as between himself and defendant in which in there was a consent judgment from the court of appeal dated 21st February 2013. He deponed that based on the said judgement he initiated the process of implementation of the decree In Miscellaneous E001 of 2025 James Kimani Horeria Vs Margaret Nyakinyua Murigu where the court directed for transfer of the suit property in his name. 9. He further deponed that despite the parties herein being aware of his proprietary interests in the suit and the existence of the consent judgement, have failed to disclose to this court the same and hence any orders issued in regard to the property are directly affecting his occupation. That his joinder will allow the court to effectively address the issues raised in the suit property and further not make orders that would affect his occupancy in the suit property without being heard hence the application. 10. The application was opposed by the plaintiff through its replying affidavit sworn by Willy Kihara Njoki Kanyotu. He deponed that the applicant had not demonstrated grounds why he should be enjoined in the suit being that the issue in the suit involved a lease as between the plaintiff and 1st defendant and not issues of ownership and his participation is not necessary. 11. That further the applicant had already sued the plaintiff and the defendant in ELC 247 of 2026 which was ongoing hence could articulate his issues in the said matter. He deponded that him not being a party to the suit was not entitled to the orders of review Applicant’s submissions. 1. In support of his application, Counsel filed submissions dated 11th May 2026 and submitted on the following issues Whether the applicant has met the conditions necessary for joinder 1. Counsel reiterated the contents of its supporting affidavit and relied on the provision of **Order 1 rule 10(2) of the Civil Procedure Rules** and the court of appeal case of **EG Vs Attorney General Vs David Kuria Mbote & 10 others (interested parties) (2021)eKLR** Counsel submitted that the applicant’s presence is necessary being that in ELC 247 of 2026 he seeks proprietary rights and this court risks adjudicating on this matter where the rights of the applicant are directly affected and might be distinguished hence need for his participation further relying on **Emfill Limited Vs Attorney general & 423 others (2024) KEELC 1274(KLR)** Whether the orders of 22nd May 2026 should be set aside varied Counsel argued that the said orders of 22nd May 2026 had been on the basis of material non-disclosure being the orders that had been issued in HCCC case no 399 James Kimani Horeria Vs Margaret Nyakinyua Murigu, Nairobi Civil appeal No 41 of 2024 that gave the applicant proprietary rights and Miscellaneous E001 of 2025 James Kimani Horeria Vs Margaret Nyakinyua Murigu that directed the deputy registrar to execute transfer documents in the applicant’s favour. Lastly counsel submitted that the said orders remaining in force would be an attack to the previous given orders as highlighted in the cases above placing reliance in the case of **Tatu City Limited Vs Kigwe & 5 others (2019)eKLR** Whether injunctive orders should issue He submitted that the dispute went beyond possession as the parties in this suit has raided the suit property and caused destruction of the applicant’s property based of the said orders and unless they are stopped, the applicant stands to suffer irreparable harm hence need to issue the injunctive orders having demonstrated prima facie case by being in occupation and being a successful litigant in being conferred proprietary rights relying on **Nguruman Limited Vs Janbonde Nielsen & 2 others (2014)eKLR.** The applicant indicated no prejudice will be occasioned on the parties if orders of injunction are given , pointing out that is anything the balance of convenience tilted in his favour having demonstrated the loss to be incurred by being disposed out of his place of residency for the last 30 years **Analysis and determination** 1. Having look at the application, the replying affidavit and the submissions, the I find the following are the issues for determination Whether the applicant has met the threshold to be enjoined as an interested party 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 Application to 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 Plaintif or Defendant, be struck out, and that the name of any person who ought to be joined whether as Plaintiff or Defendant, or whose presence before Court may be necessary in order to enable Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added*”. It is therefore evident that a party seeking joinder must demonstrate how the suit would affect his interests. In the Supreme Court in **Francis K. Muruateru & Ano Vs Republic & 5Others [2016] eKLR** set out the key elements for consideration in an Application for joinder as an Interested Party as follows: - 1. Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings; 2. Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law 3. Joinder to prevent a likely course of proliferated litigation. 4. In the case before this Court the applicant claims to have legal rights in the suit property by virtue of being declared owner by the courts in HCCC case no 399 James Kimani Horeria Vs Margaret Nyakinyua Murigu, Nairobi Civil appeal No 41 of 2024. He further claims that via an order of the court in Miscellaneous E001 of 2025 the deputy registrar was directed to effect transfer documents in in his favour. He asserts that there is active litigation in regards to ownership of the property involving the parties herein and any orders made in this suit might interfere with his legal rights hence the necessity of him to be enjoined to help the court come to a just determination. The applicant has not attached any documentary evidence to back his claims and the court can therefore not substantiate the arguments raised, nevertheless, I have perused through the CTS and noted that indeed there is ELC 247 OF 2026 that touches on the parties herein over the same subject matters in which the applicant herein has sued seeking for declaratory rights over the property. The plaintiff in his replying affidavit has not controverted the issue of the applicant being in possession of the suit property, neither has he controverted the issues raised of there being orders that were issued in the above mentioned cases that gave the applicant herein proprietary rights. The contention raised is that the applicant will not be a necessary party herein as the suit herein is based of a tenancy agreement not ownership rights . 1. I do note that the orders that were granted on the 22nd May 2026 prohibited the defendant and any other persons from dealing with the suit property on which orders the applicant claims his peaceful occupation of the suit property has been interfered with. I find that the applicant is a necessary party as the court in issuing injunctive orders, directly touch on the occupation of the applicant. From the record, the judgment herein is likely to affect the applicant’s rights, duties, or legal position and specifically on prayer no 2 and 3 of the plaint. This is to say the determination of the real issues in controversy between the plaintiff and the intended interested party, and the Defendants will need all concerned parties to be before the court. I place reliance on what was stated in the case of **Lucy Nungari Ngigi & 128 others Vs National Bank of Kenya Limited & another [2015] eKLR where** the Court held that; *“but one thing is clear from all these things: that the Plaintiffs and the intended Plaintiffs have an inextricable relief arising out of the subdivision and sale of the plots herein to them by the 2nd Defendant. Even if each of the Plaintiffs was to file a separate suit, a common issue of fact and law would emerge in relation to the subdivision and sale of the plots to each one of them. Similarly, the validity of the addendum to the mortgage herein between the Defendants is in the center of the cases by the Plaintiffs and the intended Plaintiffs. Therefore, despite the fact that the plots are numerous and perhaps of different sizes or that they were sold to different persons, they are all deduced from the suit property, and derived in the same transaction: they are based on the addendum between the Defendants, and all form part of the mortgaged property. Invariably, the determination of the real issues in controversy between the Plaintiff and the intended plaintiffs on the one hand, and the Defendants on the other hand, will need all concerned parties to be before the court.* 1. On the next issue as to whether the ruling delivered on 22nd May 2026 ought to be set aside. The applicable law on setting aside of orders and the provisions of **Section 80 of the**[**Civil Procedure Act**](https://new.kenyalaw.org/akn/ke/act/1924/3)**and Order 45 Rule 1 of the Civil Procedure Rules,** which avail an opportunity to any person who feels aggrieved by a decree or order of the court to apply to have the said decree or order varied or set aside. **Order 45 Rule 1 (b) of the Civil Procedure Rules** in addition spells out conditions that must be met in an application for review of a decree or order as follows: 2. There must be discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or the order made, 3. mistake or error apparent on the face of the record, 4. or for any other sufficient reason, 5. the application must be made without unreasonable delay. 6. The applicant’s main arguments in its pleadings were that the orders of this court should be set aside and/or reviewed on the grounds that there was material non-disclosure on the part of Plaintiff that they was a consent judgment that gave the applicant rights over the suit property, that they were in possession leading to the issuance of the said orders, and that the proposed interested party was not given an opportunity to be heard. 7. Under the provision of Rule 25 of [the Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution) of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (What is now terms as “The Mutunga Rules”) provides as follows: *“Setting Aside, Varying or Discharge – An Order issued under Rule 22 may be discharged, varied or set aside by the Court either on its own motion or an application by a party dissatisfied with the order’’* 8. From the stated provisions, it is quite clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably. The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal. The review must be confined to error apparent on the face of the record and re – appraisal of the entire evidence or how the Judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is permissible. In **Tokesi Mambili and Others Vs Simion Litsanga Civil Appeal No. 45 of 2003** the court held as follows:-“*In order to obtain a review an applicant has to show to the satisfaction of the Court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason”* 9. Applying the above principles to the instant application, I find that in indeed there was no error apparent. **Final disposition** In the circumstances, I hold that the application dated 2nd June 2026 partially succeeds in the following terms; 1. That the Notice of Motion dated 2nd June, 2026 is partially merited in terms of prayer No 3 thereof and the applicant be joined as a party to the proceedings. 2. That with regards to the orders for review I find no reason to review and set aside the said orders. 3. That the cost of the Application shall be in the cause. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **6th** dayof **August, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Kingori Holding brief for Mr. Ruiru Njoroge** for the Plaintiff **Mr. Kingori** for the Defendant **Mr. Gaturu (SC) together with Mr. Kimani Horeria** for the Proposed Interested Party **Ms. Mwangi** Court Assistant