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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 172 (KLR)

Kithuka v Kabui & 2 others (Environment & Land Case 74 of 2020) [2025] KEELC 172 (KLR)

Environment and Land Court
29 January 2025
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that anyone claiming ownership of land in dispute must be joined as a full defendant, not just a bystander.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos on a notice of motion dated 20th June 2024 by Mary Kamuyu Gachihi, the proposed 3rd defendant, seeking joinder to a suit in which the plaintiff, Richard Kithuka, claims 11.2 acres purchased from the 1st defendant out of parcel Donyo Sabuk/Komarock Block 1/4584. The applicant deponed that she purchased 1.03 hectares from the 1st and 2nd defendants in 2013, paid the full purchase price, conducted official and physical searches, and is the registered proprietor of Donyo Sabuk/Komarock Block 1/47388, a subdivision of the suit property; she had also filed Kangundo Magistrates Court Case Number 32 of 2022 over trespass. The plaintiff opposed, conceding the subdivision but alleging her registration was fraudulent, and argued she should at most be an interested party since he did not purchase from her. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the principles in Civicon Ltd v Kivuwatt Ltd and Gladys Nduku Nthuki v Letshego Kenya Limited, the court held the discretion to join parties must be exercised judicially and that a party need only demonstrate sufficient interest. The applicant's interest went beyond being affected by the outcome - she claimed ownership of part of the suit property - so the plaintiff's objection amounted to approbating and reprobating. The application was allowed: the applicant was joined as 3rd defendant, the plaintiff given 14 days to amend pleadings, the 3rd defendant to file her defence within prescribed timelines, with no order as to costs.

Key legal issues

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01

Whether the applicant qualifies for joinder as a defendant under Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

Yes; she is the registered proprietor of a subdivision of the suit property and claims ownership of part of it, so she is a necessary party who should be joined as a defendant.

Reasoning

The court applied Order 1 Rule 10(2), which permits joinder of any person whose presence is necessary to enable the court effectually and completely to adjudicate on all questions in the suit. Drawing on Civicon Ltd v Kivuwatt Ltd, the discretion must be exercised judicially, considering the party's necessity, prejudice and practicability. The applicant demonstrated a sufficient interest: registered ownership of a subdivision of the suit property, conceded by the plaintiff, plus a claim of ownership. The plaintiff's objection that she should be an interested party was rejected as approbating and reprobating.

p. 3
02

Whether the plaintiff's objection that the applicant should be joined only as an interested party was meritorious

Holding

No; the argument was without merit because the applicant's interest went beyond being affected by the decision - she claimed ownership of part of the suit property.

Reasoning

The plaintiff contended the applicant should be an interested party since he did not purchase from her, while simultaneously alleging her registration was fraudulent. The court held this was approbating and reprobating. Since the applicant claimed ownership of part of the suit property, her interest exceeded that of an interested party, warranting joinder as a primary party to avoid multiplicity of suits and enable complete determination of the dispute.

p. 3

Legal principles established

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  • A person whose interest goes beyond being affected by a decision - one who claims ownership of part of the suit property - must be joined as a primary party, not merely an interested party, so as to avoid multiplicity of suits.
  • The test for joinder under Order 1 Rule 10(2) is demonstration of sufficient interest in the suit; the interest need not be one that must succeed at trial.

Court orders

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  1. 1.The applicant Mary Kamuyu Gachuhi is joined to the proceedings as the 3rd defendant.
  2. 2.The plaintiff is at liberty to amend his pleadings to include the 3rd defendant within 14 days.
  3. 3.Upon service, and/or upon lapse of 21 days of the ruling, the 3rd defendant shall file and serve her statement of defence, witness statements and documents.
  4. 4.There is no order as to costs.
Jurisdiction invoked
Order 1 Rule 10 (2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kithuka v Kabui & 2 others (Environment & Land Case 74 of 2020) [2025] KEELC 172 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/172/eng@2025-01-29

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