Ngetich & 13 others v Deputy County Commissioner, Kipkelion East & 2 others; Emenkei Techno Services Limited (Interested Party); Mokal Investment Limited (Intended Interested Party) (Environment and Land Miscellaneous Application E023 of 2024) [2025] KEELC 650 (KLR)

The court applied the Muruatetu and Skov Estate thresholds for joinder of interested parties and the holding in Lilian Wairimu Ngatho that joinder is available only during the pendency of proceedings. Having found that the order of 22nd October 2024 had been executed and the file spent, there were no live proceedings into which the applicants could be enjoined. Contentious title claims belong in a substantive suit such as Kericho ELC No. E014 of 2022.

Citing Oraro v Mbaja, the court held that a preliminary objection must not be blurred with factual details liable to be contested or proved by evidence. The ground on the deponent's authority as director required factual proof, and the ground that the orders of 22nd October 2024 had been executed was itself disputed by the Intended Interested Party's further affidavit. Neither ground could properly proceed as a preliminary objection.

Relying on County Assembly of Mandera and Hopf v Director of Survey, the court held that a party not yet enjoined lacks capacity to seek substantive orders. Since joinder was refused and the security order had been executed and exhausted, there was nothing pending to set aside. Any challenge to the titles or to the legality of the sub-division must be pursued in a substantive suit.

Although the general rule is that costs follow the event under Section 27 of the Civil Procedure Act and a successful party should ordinarily get costs, the court in its disposition declined to award costs on the dismissed applications and preliminary objection, making no order as to costs on each.