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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 3481 (KLR)

Makau & another v Muoti; Kivut & another (Intended Interested Party) (Environment & Land Case E017 of 2023) [2025] KEELC 3481 (KLR)

Environment and Land Court
29 April 2025
3,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Matheka J) determined two interlocutory applications arising from a land dispute over properties known as Katheka-Kai "B" Block 4/144 and 145 (also referred to as Machakos Block 4/144 and 4/145). The first application, dated 18th December 2024, sought the joinder of intended interested parties who claimed the defendant had transferred the two properties to them, that they had been in possession and occupation since 2014, and that the properties did not form part of the estate of Nzisa Kamala. The plaintiffs, administrators of the estate of Priscilla Nzisa Kamala appointed in Machakos HCC. Succ No. E043 of 2022, opposed, asserting the deceased never sold the land. Applying Order 1 Rule 10(2) and the Supreme Court's decision in Communications Commission of Kenya v Royal Media Services, the court found the applicants had an interest in the suit property and their joinder was necessary for complete and effectual adjudication; it declined, however, to enjoin the Chief Land Registrar, holding the Registrar could be summoned to produce the parcel file or give evidence. The second application, dated 22nd January 2025, sought a temporary injunction restraining the 1st Interested Party from alienating or interfering with the properties. Applying Giella v Cassman Brown and Nguruman, the court held that although the plaintiffs asserted a prima facie case, the balance of convenience tilted in favour of the interested parties in possession, and the lower risk of injustice lay in refusing the injunction pending full hearing. The joinder application was granted as prayed with costs in the cause; the injunction application was dismissed with costs.

Key legal issues

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01

Joinder of parties under Order 1 Rule 10(2)

Holding

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

Reasoning

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.

p. 4
02

Whether a temporary injunction should issue pending determination of the suit

Holding

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

Reasoning

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.

p. 6
03

Whether the Chief Land Registrar needed to be enjoined

Holding

The Registrar need not be enjoined; the Registrar could be summoned to produce records or give evidence if required

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Costs of the joinder application to be in the cause
  3. 3.The second application dated 22nd January 2025 seeking a temporary injunction is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 4
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (10)

  • Communications Commission of Kenya and 4 Others v Royal Media Services Limited & 7 Others
    Petition No. 15 of [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Giella v Cassman Brown
    [1973] EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] EKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Paul Gitonga Wanjau v Gathuthis Tea Factor Company Ltd & 2 others
    [2016] eKLR
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & Another
    [2019] eKLR
  • Mumo Matemo case
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

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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, "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.