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ELCPartially AllowedNotice of Motion dated 26th June, 2025 (main suit case number not stated in the judgment)

Damah Alliance Limited v Muthee & another; Muthee (Plaintiff to the Counterclaim); Registrar & 8 others (Defendant to the Counterclaim) (Environment and Land Case E204 of 2023) [2026] KEELC 93 (KLR)

Environment and Land Court
22 January 2026
2,275 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed a buyer to be added to an ongoing suit but refused a second attempt at a property injunction already decided earlier.

What this practically means

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Executive summary

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The Environment and Land Court at Nairobi (Mbogo C. G., J) delivered a ruling on a notice of motion dated 26th June, 2025 by the 1st defendant in the main suit, who is the plaintiff/applicant in the counterclaim. The application sought leave to amend the statement of defence and counterclaim, the joinder of Hidaya Alliance Group Limited as 9th defendant in the counterclaim, and a temporary injunction restraining dealings with LR Number 36/V11/275 Eastleigh (original), now Nairobi/Block 49/91. The applicant deposed that documents disclosed the suit property had been sold to the intended 9th defendant while the suit was pending. The 7th and 8th defendants opposed through grounds of opposition and a replying affidavit, contending the intended party had not been served, that service was a jurisdictional prerequisite, and that a similar injunction application had been dismissed in ELC Petition No. E012 of 2023 with the appeal also dismissed on 26th July, 2024. The court framed two issues: joinder and injunctive relief. Applying Order 1 rule 10(2) and the Technomatic principles, it found the purchaser had an identifiable stake and was a necessary party; want of service on the added party was curable by amendment and service under Order 1 rule 10(4). On injunction, the court held prayer 3 was res judicata, having been determined in the earlier petition and on appeal, citing Section 7 of the Civil Procedure Act and the Uhuru Highway Development Ltd line of authority that there must be an end to interlocutory applications. The application partially succeeded: the joinder and leave to amend were allowed, the injunction was refused, and costs were awarded in the cause.

Questions the Court framed

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

  1. 1.Whether the intended 9th Respondent (Hidaya Alliance Group Limited) should be joined to the suit
  2. 2.Whether the plaintiff/applicant is entitled to an order of temporary injunction

Key legal issues

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01

Joinder of the intended 9th defendant

Holding

Hidaya Alliance Group Limited was joined as a necessary party with an identifiable stake in the suit property, having purchased it from the 8th defendant

Reasoning

Applying Order 1 rule 10(2) and the Technomatic principles, the court found the purchaser of the suit property a necessary party. The objection based on want of service was addressed through Order 1 rule 10(4), which requires amendment of the plaint and service of amended copies on the new defendant. No prejudice was shown by the respondents, and hearing had not commenced.

p. 4
02

Whether the injunction prayer is res judicata

Holding

Prayer 3 was barred by res judicata, having been determined in ELC Petition No. E012 of 2023 (ruling of 31st January, 2024) and on appeal (dismissed 26th July, 2024)

Reasoning

Section 7 of the Civil Procedure Act bars re-litigation of a matter directly and substantially in issue in a former suit between the same parties that was heard and finally decided. The identical injunction prayer had been dismissed by the court and by the Court of Appeal. Relying on Uhuru Highway Development Ltd, the court held there must be an end to interlocutory applications as much as to litigation.

p. 5

Legal principles established

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  • Res judicata under Section 7 of the Civil Procedure Act applies to interlocutory applications within a suit; a prayer for temporary injunction already finally determined cannot be resuscitated by a fresh application
  • A person whose presence is necessary to enable the court to effectually and completely adjudicate on all questions in the suit may be joined at any stage under Order 1 rule 10(2), and the failure to serve the new party is cured by amending the plaint and serving amended copies under Order 1 rule 10(4)

Court orders

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  1. 1.Hidaya Alliance Group Limited is joined in the suit as the 9th defendant in the counterclaim
  2. 2.Leave granted to the plaintiff/applicant in the counterclaim / 1st defendant in the main suit to amend his statement of defence and counterclaim dated 7th July, 2023
  3. 3.Costs shall be in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 3 & 3A of the Civil Procedure Act, Order 1 rule 10(2) and (4), Order 8 rules 3 & 5 and Order 40 rule 1 of the Civil Procedure Rules

Relief refused

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Prayer 3 - temporary injunction restraining dealings with LR Number 36/V11/275 Eastleigh (original) now Nairobi/Block 49/91

The same injunction application had already been heard and dismissed in ELC Petition No. E012 of 2023 and on appeal, making it res judicata

p. 5

Costs

Costs shall be in the cause

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.

Hidaya Alliance Group Limited is hereby joined in this suit as the 9th defendant in the counterclaim.
p. 6Joinder - final order
Leave is hereby granted to the plaintifi/ applicant in the counterclaim/ and or the 1st defendant in the main suit to amend his statement of defence and counterclaim dated 7th July, 2023.
p. 6Leave to amend - final order
Costs shall be in the cause.
p. 6Costs - final order
In sum, prayer no. 3 was already determined and thus res judicata.
p. 5Res judicata of interlocutory applications
the cure to ensure that the intended 9th defendant/respondent participates in these proceedings is through amendment of the plaint
p. 5Curing want of service on an added party

Issues in the judgment

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minor

The judgment alternately refers to the applicant as the '1st defendant/applicant' and the '1st plaintifi/applicant in the counterclaim', and the supporting affidavit is described as that of the '1st plaintifi/applicant' whereas the motion is by the '1st defendant/applicant in the counterclaim'

minor

The Court of Appeal dismissal is referred to inconsistently as 'Appeal No. E063 of 2024' and 'Nairobi Civil Appeal No. E063 of 2024' while elsewhere it is described as 'Civil Application No. E063 of 2024'

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, "Damah Alliance Limited v Muthee & another; Muthee (Plaintiff to the Counterclaim); Registrar & 8 others (Defendant to the Counterclaim) (Environment and Land Case E204 of 2023) [2026] KEELC 93 (KLR)", Case Analysis (2026). Notice of Motion dated 26th June, 2025 (main suit case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/93/eng@2026-01-22

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