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ELCStruck OutEnvironment & Land Civil Case No. 74 of 2009 (with consolidated Environment & Land Civil Case 310 of 2017)

Mulwa & 3 others (Suing as the Current Chairman, Secretary and Treasury of Kasuitu Plot Owners Self Help Group) v Fundi (Sued as a Legal Representative of the Estate of Josephat Nzioka Wambua (Deceased)) & 5 others (Environment and Land Case Civil Suit 74 of 2009 & 310 of 2017 (Consolidated)) [2025] KEELC 3451 (KLR)

Environment and Land Court
29 April 2025
1,891 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an application by people who renamed themselves 'defendants' after being denied joinder, confirming strangers cannot seek reliefs in a case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos by A. Y. Koross J resolved a notice of motion dated 18/10/2023 in a land suit pending since 2009. The applicants - Harrison Muinde Kivaya, Justus Muema Muthoka and Paul Maingi Juve Ngai, describing themselves as new officials of Kasuitu Plot Owners Self-Help Group - sought to set aside orders of 21/07/2022, to set aside Charles Fundi's notice to act in person dated 7/06/2022, to expunge a consent dated 25/07/2022 and filed on 28/07/2022, and to replace the deceased defendants as new officials of the group. Charles Fundi had obtained letters of administration ad litem and substituted the deceased defendants, and a consent had been filed but not adopted for want of signatures by the plaintiffs' counsel. The court framed four issues but found it necessary to decide only the first: whether the alleged defendants were strangers. Relying on the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, the court held that parties alone may seek reliefs; the applicants had already been declined joinder as interested parties in a ruling of 20/09/2023, and could not relabel themselves 'defendants'. This amounted to abuse of the court process and rendered the application incompetent. The remaining issues were not considered. The court struck out the motion, made no order as to costs, restrained further applications without leave, and gave directions on a fresh joinder application dated 13/02/2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the alleged defendants are strangers in these proceedings.
  2. 2.Whether the orders of 21/07/2022 should be set aside.
  3. 3.Whether the consent dated 25/07/2022 and Charles Fundi's notice to act in person should be expunged from the record.
  4. 4.What orders should be issued, including an order as to costs?

Key legal issues

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01

Whether the alleged defendants are strangers in these proceedings

Holding

They are strangers; having been declined joinder as interested parties, their purported self-description as 'defendants' cannot confer standing and their application is incompetent

Reasoning

The court had already dismissed their joinder application on 20/09/2023. Parties accrue rights and responsibilities which strangers cannot enjoy. Renaming themselves as 'defendants' without joinder was 'self-metamorphosis' amounting to abuse of the court process. Reliance placed on the Supreme Court decision in Communications Commission of Kenya v Royal Media Services. It was therefore unnecessary to decide the remaining issues.

p. 5
02

Whether the remaining prayers (setting aside orders, expunging consent and notice to act in person) should be granted

Holding

Not determined, as the motion failed on the threshold standing issue

Reasoning

Having found the applicants to be strangers whose application was incompetent, the court held it unnecessary to consider the other issues. It also noted that anyone questioning Charles Fundi's limited grant may move the probate court to revoke it.

p. 5

Legal principles established

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  • A stranger to court proceedings cannot seek reliefs in a suit or application; non-parties who disguise themselves as defendants abuse the court process
  • Where a person not initially a party is enjoined as an interested party, they cannot seek to strike out the suit on grounds of defective pleadings

Court orders

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  1. 1.The notice of motion dated 18/10/2023 is struck out with no orders as to costs.
  2. 2.Unless with leave of the court, no further applications shall be entertained in this matter.
  3. 3.Directions on the application dated 13/02/2025 to be made on 23.06.2025.
  4. 4.The plaintiffs in this matter to serve the plaintiffs in the consolidated suit with a mention notice.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1, 1B and 3A of the Civil Procedure Act and Order 22 Rule 51 of the Civil Procedure Rules
Consolidated with
Environment & Land Civil Case 310 of 2017

Relief refused

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Setting aside orders of 21/07/2022

The applicants are strangers to the proceedings; the motion was struck out as incompetent without reaching the remaining issues

p. 5

Expunging the consent dated 25/07/2022 and Charles Fundi's notice to act in person

Not considered because the application was incompetent

p. 5

Substitution of new Kasuitu officials for deceased defendants

Election of new group officials does not vest a real stake in the applicants

p. 5

Costs

No orders as to costs - the motion was struck out with no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a stranger to court proceedings cannot be heard to seek prayers or reliefs in an application such as this one or in a suit.
p. 4Standing of strangers in litigation
the alleged defendants have abused the court process, and this court will not entertain their actions.
p. 5Abuse of court process
That the notice of motion dated 18/10/2023 is hereby struck out with no orders as to costs.
p. 5Final orders - striking out
Unless with leave of the court, no further applications shall be entertained in this matter.
p. 5Final orders - fettering further interlocutory applications

Issues in the judgment

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minor

Motion is dated 18/10/2023 but the background states the law firm filed the motion shortly after the 20/09/2023 joinder ruling was delivered, a date discrepancy of about a month

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, "Mulwa & 3 others (Suing as the Current Chairman, Secretary and Treasury of Kasuitu Plot Owners Self Help Group) v Fundi (Sued as a Legal Representative of the Estate of Josephat Nzioka Wambua (Deceased)) & 5 others (Environment and Land Case Civil Suit 74 of 2009 & 310 of 2017 (Consolidated)) [2025] KEELC 3451 (KLR)", Case Analysis (2025). Environment & Land Civil Case No. 74 of 2009 (with consolidated Environment & Land Civil Case 310 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3451/eng@2025-04-29

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