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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 4611 (KLR)

Da Costa v Maina & 3 others; Hure (Interested Party) (Suing as the Administrator of the Estate of Barkat Bibi Shad alias Barkat Bibi w/o Wali Mohammed Shad, Deceased) (Environment & Land Case E177 of 2023) [2025] KEELC 4611 (KLR)

Environment and Land Court
24 April 2025
JKJ. G. Kemei
1,914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that anyone claiming ownership of disputed land must join a case as a defendant or plaintiff, not merely as an interested party.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi on a Notice of Motion dated 16 May 2024 by Abdi Rahman Sheikh Ismail Hure seeking joinder in a land dispute over Nairobi Block 42/119 (formerly LR No 209/3271/54), Easleigh, Nairobi, registered in the name of the late Barkat Bibi Shad. The applicant described himself as the widower, administrator and beneficiary of the deceased's estate, exhibiting a marriage certificate, grant of letters of administration, certificate of confirmation of grant and title, and alleged that the 2005 sale agreement and transfer relied upon by the plaintiff were forgeries procured through a false power of attorney held by Manawar Sultan Beg Mirza. The plaintiff opposed the application as an afterthought brought too late, and the 1st Defendant claimed she purchased the land from Mirza under a 1997 power of attorney, questioning the authenticity of the applicant's Kadhi-issued grants. The court framed a single issue: whether the intended interested party should be enjoined. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the Supreme Court's tests in Communications Commission of Kenya v Royal Media Services and Muruatetu, the court found the applicant had a proximate stake and would suffer prejudice if excluded, and that non-joinder would breed proliferated litigation. However, because his cause of action was ownership of the land, the court held he should not be an interested party but a defendant. The application was allowed with the applicant enjoined as the 5th Defendant, and costs of the application were awarded against the applicant.

Key legal issues

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Whether the intended interested party satisfied the criteria for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

The application was found merited, but the applicant was joined as the 5th Defendant rather than as an Interested Party because his true cause of action was ownership of the suit land

Reasoning

The court applied the Muruatetu criteria: a personal, identifiable and proximate stake; demonstrated prejudice from non-joinder; and the case the applicant intends to make. The applicant, as widower, administrator and beneficiary of the deceased registered owner, exhibited a marriage certificate, titles, grant and confirmation of grant. The court held his exclusion would prejudice him and breed proliferated litigation. However, since his claim was essentially one of ownership, joinder as a defendant was the proper vehicle.

p. 4

Legal principles established

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  • Where an applicant's real cause of action is a claim to ownership of the suit property, joinder should be as a defendant or plaintiff rather than as an interested party
  • An interested party is one who has a stake in the proceedings and will be affected by the decision of the court either way

Court orders

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  1. 1.The applicant be and is hereby enjoined in the suit as the 5th Defendant
  2. 2.Costs of the application shall be met by the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (3)

  • Communications Commission of Kenya and 4 Others v Royal Media Services Limited & 7
    [2014] EKLR
  • Meme v Republic
    [2004] 1 EA 124
  • Francis K. Muruatetu and Another v Republic & 5 Others
    [2016] eKLR
Jurisdiction invoked
Order 1 Rule 10(2) 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, "Da Costa v Maina & 3 others; Hure (Interested Party) (Suing as the Administrator of the Estate of Barkat Bibi Shad alias Barkat Bibi w/o Wali Mohammed Shad, Deceased) (Environment & Land Case E177 of 2023) [2025] KEELC 4611 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4611/eng@2025-04-24

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