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ELCPartially AllowedELC Case of 2021 (Machakos) - applications dated 4th April 2024 and 16th April 2024· [2025] KEELC 809 (KLR)

Gwaka Wa Utheri Mwatkiria Investments Utwala Limited (Formerly Mwitikiria Investment Company) v Wachu & 3 others; Kamau & 14 others (Interested Parties) (Enviromental and Land Originating Summons E010 of 2021) [2025] KEELC 809 (KLR)

Environment and Land Court
26 February 2025
2,259 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to change its earlier orders but added a new occupant as a defendant, so the land dispute will be heard with all affected parties involved.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Machakos by N.A. Matheka J dealt with two applications. The first, dated 4th April 2024, was by the Defendant seeking review of the court's orders of 19th February 2024 and the status quo order of 30th September 2021, a site visit to assess compliance, and an order directing the OCS Muungano Police Station to oversee compliance, on grounds that members of the Plaintiff were continuing construction on the suit land in disregard of court orders, allegedly to build a claim of adverse possession. The Respondent submitted that review was unavailable, relying on Mwihoko Housing Company Limited v Equity Building Society and Rose Kaiza v Angelo Mpanju Kaiza. The court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1(b) and the National Bank of Kenya v Ndungu Njau threshold, finding no self-evident error on the face of the record, that a site visit would be premature as the orders still stood, and that this was not the procedure to enforce compliance. That application was dismissed with costs in the cause. The second application, dated 16th April 2024, by Njoroge Herman sought to be joined as 2nd Defendant, claiming he occupies and has built on part of the suit land. Applying Order 1 Rule 10(2) and the Supreme Court's criteria in Communications Commission of Kenya v Royal Media Services (drawing on Mumo Matemo and Meme v Republic), the court found the applicant had an interest in the suit property, that no prejudice would ensue, and that his joinder was necessary for complete and effectual adjudication. He was enjoined as a defendant, with costs in the cause. Parties were advised to comply with Order 11 and set the matter down for hearing. Judgment delivered at Machakos on 26th February 2025.

Key legal issues

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01

Whether the application for review met the thresholds in Section 80 of the Civil Procedure Act and Order 45 Rule 1(b) of the Civil Procedure Rules

Holding

The application failed; there was no self-evident error or omission on the part of the court warranting review.

Reasoning

Under Section 80 and Order 45 Rule 1(b), review lies on discovery of new and important matter, an error apparent on the face of the record, or other sufficient reason. The Court of Appeal authorities (Mwihoko Housing, National Bank of Kenya v Ndungu Njau) require the error to be self-evident and not require elaborate argument. The applicant showed none; the court's orders still stood, and enforcement concerns were not a proper ground for review.

p. 4
02

Whether the Intended 2nd Defendant ought to be enjoined in the suit

Holding

The application succeeded; the applicant was joined as a defendant because his presence was necessary for complete and effectual adjudication.

Reasoning

Guided by Order 1 Rule 10(2) and the Supreme Court's pronouncement in Communications Commission of Kenya v Royal Media Services on interested parties, the court found the applicant occupies and has built on part of the suit land, has an interest in the property, and that no prejudice would be suffered by the parties. His joinder as defendant would enable the court to determine all questions in finality.

p. 5

Legal principles established

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  • A review may only be granted where there is an error apparent on the face of the record that is self-evident and requires no elaborate argument; a different view of the matter or an incorrect exposition of the law is not a ground for review
  • Parties who ought to be joined are those necessary for a complete and effectual adjudication of the disputes before the court

Court orders

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  1. 1.The application dated 4th April 2024 seeking review is dismissed, with costs in the cause
  2. 2.The applicant is enjoined as a defendant in the proceedings
  3. 3.Costs of the application dated 16th April 2024 to be in the cause
  4. 4.Parties advised to comply with Order 11 and set the matter down for hearing
Jurisdiction invoked
Article 1 of the Constitution; Sections 1A, 1B, 3A, 63E and 80 of the Civil Procedure Act; Orders 1, 40, 45 and 51 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, "Gwaka Wa Utheri Mwatkiria Investments Utwala Limited (Formerly Mwitikiria Investment Company) v Wachu & 3 others; Kamau & 14 others (Interested Parties) (Enviromental and Land Originating Summons E010 of 2021) [2025] KEELC 809 (KLR)", Case Analysis (2025). ELC Case of 2021 (Machakos) - applications dated 4th April 2024 and 16th April 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/809/eng@2025-02-26

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