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Supreme CourtDismissedPetition 32 (E036) & 35 (E038) of 2022 (Consolidated)

Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others (Applicant)

Supreme Court of Kenya
16 June 2023
4,196 words in judgment
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AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Supreme Court blocks 10 groups from joining land appeal, citing failure to show personal stake.

What this practically means

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The Supreme Court of Kenya dismissed applications from 10 groups wanting to join a land dispute appeal. The court said each applicant must prove a direct personal interest in the case and show they would suffer specific harm if not allowed to join. None of the applicants met this test. The court also rejected the Law Society of Kenya's request to appear as a friend of the court, finding it lacked the required expertise and would not add new legal arguments.

Executive summary

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This ruling by the Supreme Court of Kenya (Mwilu DCJ, Ibrahim, Ndungu, Lenaola & Ouko SCJJ) disposes of twelve applications arising from a consolidated appeal against the Court of Appeal judgment of November 18, 2022. The main appeal concerns land disputes over parcels in Uasin Gishu District, where the Court of Appeal had dismissed appeals, varied the High Court judgment to set aside nullification of titles of joined individual and financial institution respondents, and allowed Sirikwa's cross-appeal. Ten applications sought joinder as interested parties, with some also seeking extension of time, leave to file cross-appeals, or leave to adduce new evidence. The Law Society of Kenya sought admission as amicus curiae. The court applied rule 24(1) of the Supreme Court Rules, 2020 and the principles from Trusted Society of Human Rights Alliance v Mumo Matemu, finding that all applicants failed to establish the prejudice that would be occasioned to them if denied joinder, noting that the appeal already had numerous interested parties raising similar issues. The court also rejected the applications for leave to file cross-appeals and adduce new evidence as the applicants did not specify grounds or evidence. The LSK's application was denied for lack of demonstrated expertise and because the amicus brief did not address points of law not already covered by the parties. All ten joinder applications and the amicus application were disallowed, with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have met the legal requirements for joinder as interested parties under rule 24(1) of the Supreme Court Rules, 2020 and the principles in Trusted Society of Human Rights Alliance v Mumo Matemu.
  2. 2.Whether the 6th and 9th applicants should be granted leave to file cross-appeals and adduce new evidence.
  3. 3.Whether the Law Society of Kenya should be admitted as an amicus curiae under rule 19 of the Supreme Court Rules, 2020.

Key legal issues

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01

What are the legal requirements for joinder as an interested party in the Supreme Court?

Holding

An applicant must satisfy the three elements set out in Trusted Society of Human Rights Alliance v Mumo Matemu: (i) set out the personal interest or stake in the matter, which must be clearly identifiable and proximate; (ii) demonstrate the prejudice to be suffered if joinder is denied, which must be clearly outlined and not remote; (iii) set out the case/submissions intended to be made and demonstrate their relevance and that they are not a mere replication of what other parties will make.

Reasoning

The court applied rule 24(1) of the Supreme Court Rules, 2020 and the principles from Trusted Society of Human Rights Alliance v Mumo Matemu, as affirmed in Francis Karioki Muruatetu & another v Republic. The court found that all applicants failed to establish the prejudice that would be occasioned to them if denied joinder, and noted that the appeal already had numerous interested parties whose cause largely revolved around what all the interested parties sought to raise, so they would not be prejudiced.

02

What are the requirements for admission as an amicus curiae in the Supreme Court?

Holding

Under rule 19 of the Supreme Court Rules, 2020, the court may permit a person with particular expertise to appear as a friend of the court, considering the proven expertise, independence and impartiality, or the public interest. The amicus brief must address points of law not already addressed by the parties.

Reasoning

The court found that the Law Society of Kenya did not demonstrate the requisite expertise to aid the court, and the amicus brief did not address points of law not already addressed by the parties to the suit. Therefore, the court was not inclined to admit LSK as an amicus curiae.

Legal principles established

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  • To join a case as an interested party, you must show a clear, personal stake in the matter.
  • The prejudice you would suffer if denied joinder must be specific and not remote.
  • Your submissions must be relevant and not simply repeat what other parties will say.
  • A friend of the court (amicus curiae) must have proven expertise and address points of law not already covered by the parties.
  • Applications for leave to file cross-appeals or adduce new evidence must specify the grounds and the evidence sought to be introduced.
  • The court will not allow joinder if existing parties already adequately represent the interests raised.

Court orders

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  1. 1.The notice of motion application dated December 6, 2022 filed by Ezekiel Kibet Mibei and Naftali Kiplimo Mibei is disallowed.
  2. 2.The notice of motion application dated December 30, 2022 filed by Solomon Estimoa Luvai and 624 other applicants is disallowed.
  3. 3.The notice of motion application dated January 10, 2023 filed by Simon Macharia Maina & 48 others is disallowed.
  4. 4.The notice of motion application dated January 11, 2023 filed by Mark Somoey & 13 others is disallowed.
  5. 5.The notice of motion application dated January 13, 2023 filed by Kibwari PLC is disallowed.
  6. 6.The notice of motion application dated January 13, 2023 filed by John K. Sitenei & 9 others is disallowed.
  7. 7.The notice of motion application dated February 17, 2023 filed by Charles Sang’anyi Nyameino & 26 others is disallowed.
  8. 8.The notice of motion application dated January 12, 2023 filed by James Kipkerebulit Yatich & 438 other applicants is disallowed.
  9. 9.The notice of motion application dated February 8, 2023 filed by the University of East Africa -Baraton is disallowed.
  10. 10.The notice of motion application dated February 7, 2023 filed by the Law Society of Kenya is disallowed.
  11. 11.There shall be no order as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P.M. MwiluDCJ
Currently serving
majority

Wrote the judgment

majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Eldoret
Civil Appeal 45 & 44 of 2017 (Consolidated)
Jurisdiction invoked
Rule 24(1) of the Supreme Court Rules, 2020 (joinder) and Rule 19 (amicus curiae)
Consolidated with
Supreme Court Petition No 35(E038) of 2022, Supreme Court Petition No 36(E039) of 2022

Relief refused

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Joinder as interested parties (all 10 applications)

Applicants failed to establish the prejudice that would be occasioned to them if denied joinder, and the appeal already has numerous interested parties raising similar issues.

Leave to file cross-appeals (6th and 9th applicants)

Applicants did not specify the grounds of contention and the nature of the relief sought.

Leave to adduce new evidence (6th and 9th applicants)

Applicants did not specify what additional evidence they intend to adduce, and the applications do not meet the principles for admission of additional evidence.

Admission as amicus curiae (Law Society of Kenya)

LSK did not demonstrate the requisite expertise to aid the court, and the amicus brief does not address points of law not already addressed by the parties.

Costs

There shall be no order as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we find that the applicants have not met the threshold for admission as an interested party as they have all failed to establish the prejudice that will be occasioned to them if denied joinder as interested parties.
p. 8 Joinder of interested parties - failure to demonstrate prejudice
We are unconvinced that the LSK has the requisite expertise to aid the court in this matter, and from a perusal of the appeal, we do not see how the amicus brief is addressing point(s) of law not already addressed by the parties to the suit.
p. 9 Amicus curiae - lack of expertise and redundancy
The notice of motion application dated December 6, 2022 filed by Ezekiel Kibet Mibei and Naftali Kiplimo Mibei is disallowed.
p. 9 Final orders - disallowance of joinder applications
The notice of motion application dated February 7, 2023 filed by the Law Society of Kenya is disallowed.
p. 10 Final orders - disallowance of amicus curiae application
There shall be no order as to costs.
p. 10 Costs order

Key timeline

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2022-11-18
Court of Appeal delivers judgment in land dispute over parcels in Uasin Gishu District.
2022-12-06
First application for joinder as interested party filed by Ezekiel Kibet Mibei and Naftali Kiplimo Mibei.
2023-01-10 to 2023-02-17
Nine more joinder applications and one amicus curiae application filed.
2024-01-01
Supreme Court disallows all 10 joinder applications and the amicus application, with no order as to costs.

Practical implications

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For lawyers

Joinder threshold tightened

When drafting joinder applications, explicitly detail the client's direct, personal interest in the subject matter and the specific, non-remote prejudice they will suffer if excluded. Avoid generic claims. Also, ensure any proposed submissions are distinct from those of existing parties. For amicus applications, clearly demonstrate the applicant's unique expertise and how the brief will address novel points of law not already covered by the parties.

For businesses

Land dispute intervention harder

If your business has an interest in land that is the subject of an ongoing appeal, you cannot simply file to join the case. You must provide concrete evidence of your direct stake—such as a title deed, lease, or court order—and explain exactly how the outcome will harm you if you are not heard. The court will reject applications that merely repeat arguments already made by other parties.

For individuals

Personal stake must be proven

If you want to join a court case as an interested party, you must clearly show the judge that you have a personal, direct interest in the outcome—not just a general concern. You also need to explain the specific harm you will suffer if you are not allowed to participate. Vague or remote claims will not be accepted. The court expects you to prove your connection to the dispute.

Frequently asked questions

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What is an interested party in a Kenyan Supreme Court case?+

An interested party is someone who is not a main party to the case but has a direct personal stake in the outcome. In Kenya, you must apply to the court and prove your interest is clear, specific, and not just a general concern. The court will only allow you to join if you show you will suffer real harm if excluded.

How do I join a land dispute case in the Supreme Court of Kenya?+

You must file an application under Rule 24(1) of the Supreme Court Rules, 2020. Your application must state your personal interest in the land, the prejudice you will suffer if denied joinder, and the submissions you intend to make. The court will reject your application if your interest is vague or your arguments repeat what other parties have already said.

What is an amicus curiae in Kenya?+

An amicus curiae, or 'friend of the court,' is a person or organization with special expertise that helps the court decide a case. In Kenya, you must apply under Rule 19 of the Supreme Court Rules, 2020, and show you have proven expertise, independence, and that your brief addresses points of law not already covered by the parties.

Can I file a cross-appeal or new evidence in the Supreme Court of Kenya?+

Yes, but you must specify the grounds for the cross-appeal and the exact new evidence you want to introduce. The court will reject vague requests. In this case, the Supreme Court disallowed such applications because the applicants did not clearly state what they wanted to appeal or what new evidence they had.

Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others (Applicant)", Case Analysis (2023). Petition 32 (E036) & 35 (E038) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2023/39/eng@2023-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.