Makau & another v Muoti; Kivut & another (Intended Interested Party) (Environment & Land Case E017 of 2023) [2025] KEELC 3481 (KLR)
The bottom line
#A Machakos court allowed long-time land occupants to join an estate dispute but refused to stop them using the land, because they had occupied it since 2014.
What this practically means
#Executive summary
#Key legal issues
#Joinder of parties under Order 1 Rule 10(2)
The interested parties, being in possession of the suit property and claiming ownership through transfer recorded by the co-operative society, ought to be enjoined as a defendant to enable complete and effectual adjudication
Applying Order 1 Rule 10(2) and the Supreme Court's test in Communications Commission of Kenya, the court found the applicants had an interest in the suit property and their joinder was necessary for complete settlement of all questions, with no prejudice to the existing parties.
Whether a temporary injunction should issue pending determination of the suit
The injunction application failed because the balance of convenience tilted in favour of the interested parties, who have been in possession and have developed the land since 2014
The court set out the Giella v Cassman Brown principles as reinforced in Nguruman. Though the plaintiffs claimed ownership as administrators of the estate, the court had not interrogated the documentary history of either side, and found the lower risk of injustice lay in refusing the injunction and hearing the suit on its merits.
Whether the Chief Land Registrar needed to be enjoined
The Registrar need not be enjoined; the Registrar could be summoned to produce records or give evidence if required
The applicants had argued the matter involved determination of the authenticity of titles, but the court held that production of the parcel file or viva voce evidence from the Registrar would suffice without formal joinder.
Legal principles established
#- An interested party is one who has a stake in the proceedings and will be affected by the decision of the court when it is made
- The applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience is in his favour
- The court, in assessing the balance of convenience, should opt for the lower rather than the higher risk of injustice
Court orders
#- 1.The first application for joinder dated 18th December 2024 is granted as prayed - the intended interested parties are enjoined in the suit (the applicant to be added as a defendant)
- 2.Costs of the joinder application to be in the cause
- 3.The second application dated 22nd January 2025 seeking a temporary injunction is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 1 Rule 10(2), Order 40 Rules 2 and 4, Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau & another v Muoti; Kivut & another (Intended Interested Party) (Environment & Land Case E017 of 2023) [2025] KEELC 3481 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3481/eng@2025-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.