Chisenga & 3 others (Representing over 150 residents residing on LR No 176/IV/MN CR 27920) v Estate of Onesmus Nyamae Kyengo & 3 others; Mwaganda & 3 others (Applicant) (Environment & Land Case 94 of 2022) [2024] KEELC 3280 (KLR)
The bottom line
#A Mombasa court refused to let four people join a land case because their claim was already decided — their remedy is their pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants should be joined as interested parties
The application was dismissed; the applicants failed to meet the threshold for joinder as their interest in the suit property was already adjudicated upon in Malindi ELC No. 183 of 2013
The court applied the settled principles from Muruatetu, Communications Commission of Kenya, Meme v Republic and other authorities. It found the applicants' adverse possession claim was rejected in ELC No. 183 of 2013 where they were declared trespassers and ordered to vacate. Enjoining them would amount to sitting on appeal over a decision of a court of equal status. Their remedy lies in the pending Court of Appeal appeal.
Whether the applicants are entitled to the orders sought
Not entitled; their claim amounts to a second bite at the cherry
The court found the same evidence relied on in the joinder application (including the Ministry of Lands ground report) had been presented and rejected in the earlier suit. Joinder cannot be used to relitigate a concluded claim disguised as an interested party application; the applicants must await the outcome of their appeal.
Who bears the costs of the application
The 1st Plaintiff/Respondent and 1st Defendant/Respondent are awarded costs
Under Section 27 of the Civil Procedure Act, costs follow the event. The application having failed, the respondents who participated in the proceedings were entitled to costs.
Legal principles established
#- Joinder of an interested party is discretionary, not automatic, and requires a demonstrable, identifiable and proximate interest not already finally determined by a court of competent jurisdiction
- A party whose claim has been decided and who has lodged an appeal must pursue that appeal rather than seek joinder as an interested party in a separate suit
Court orders
#- 1.The Notice of Motion application dated 4th October 2023 is dismissed for lack of merit
- 2.Costs awarded to the 1st Plaintiff/Respondent and 1st Defendant/Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 18 of the Civil Procedure Act, Cap. 21; Orders 1 Rule 10(2) and 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jane Njeri Mwaura v Nyakinyua Investments Limited & 6 others[2026] KEELC 6196 (KLR)5 Oct 2026
- Jane Njeri Mwaura v Nyakinyua Investments Limited & 6 others[2026] KEELC 6196 (KLR)5 Oct 2026
Cite this brief
#Cite this brief
Caselaw, "Chisenga & 3 others (Representing over 150 residents residing on LR No 176/IV/MN CR 27920) v Estate of Onesmus Nyamae Kyengo & 3 others; Mwaganda & 3 others (Applicant) (Environment & Land Case 94 of 2022) [2024] KEELC 3280 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 4th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3280/eng@2024-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.