Esikar Gardens and Hotels Limited v Antona Investments Company Limited (Environment & Land Case E014 of 2022) [2025] KEELC 149 (KLR)
The bottom line
#A Kenyan land court allowed a buyer to add a joint owner of the disputed land to their lawsuit but refused to sue the lawyer involved, sending misconduct complaints elsewhere.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Intended Defendant (Geofirey Makana Asanyo) should be joined as a defendant
Yes - as joint owner of the suit property by virtue of the declaratory judgment in Kilgoris ELC E007/2022, he has beneficial interests and is a necessary party
The court took judicial notice of the stay of the E007/2022 judgment but held the judgment remains valid; being declaratory, it pronounced proprietary rights over Narok/Transmara/Intona/5 as between the 1st and 2nd Intended Defendants. Since the suit involves that property, the 2nd Intended Defendant's beneficial interest warranted joinder. Privity of contract objections were left for trial.
Whether the 3rd Intended Defendant (Ombati Samson Omwanza and Nyasimi Advocates) should be joined as a defendant
No - he acted as agent of a disclosed principal and misconduct complaints belong to the Advocates Complaints Commission
The applicant relied on Nyweri Development Group v Matumaini Ventures where an advocate was joined as principal party, but the court distinguished it: there the advocate faced fraud/criminality allegations within the High Court's jurisdiction. Here the advocate faced only bias and professional misconduct complaints, already lodged with the Advocates Complaints Commission. He may be called as a witness.
Costs of the application
Costs to abide the outcome of the case
The application partially succeeded - joinder of the 2nd Intended Defendant was granted but joinder of the 3rd was refused - so the court did not award costs to either party, instead directing costs to abide the outcome of the main suit.
Legal principles established
#- A party with proprietary or beneficial interests in suit land, as pronounced by a declaratory judgment, is a necessary party to a suit involving that property even if a stay of that judgment is in force.
- Privity of contract is a defence to be determined at full trial, not at the interlocutory stage of an application for joinder.
- An advocate who acted as agent of a disclosed principal is not joined as a principal party on allegations of professional misconduct, which lie within the jurisdiction of the Advocates Complaints Commission.
Court orders
#- 1.The Applicant is granted leave to amend its Plaint so as to join the 2nd Intended Defendant, but not the 3rd Intended Defendant; the Amended Plaint shall not be in the form of the Draft Amended Plaint annexed to the application
- 2.The application for joinder of the 3rd Intended Defendant (Ombati Samson Omwanza and Nyasimi Advocates) is declined
- 3.The costs of the application shall abide by the outcome of the case
- Jurisdiction invoked
- Sections 100 of the Civil Procedure Act; Order 8 Rule 3 and Order 1 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esikar Gardens and Hotels Limited v Antona Investments Company Limited (Environment & Land Case E014 of 2022) [2025] KEELC 149 (KLR)", Case Analysis (2025). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/149/eng@2025-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.