Mwendwa & another (Suing as the Legal Representatives of the Estate of the Late Abrahim M'Kirera M'Ncau alias Abrahim M’Kirera M’Nchauu – Deceased) v Safaricom Plc & another (Environment and Land Case E020 of 2022) [2026] KEELC 3144 (KLR)
The bottom line
#The Environment and Land Court allowed KENHA to stay in Safaricom's land dispute, so the trespass case will now be heard on its merits.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of preliminary objection met the Mukisa Biscuit threshold
It did; the substantive points were pure points of law requiring no ascertainment of facts through evidence.
The court applied the Mukisa Biscuit definition adopted by the Supreme Court in Hassan Ali Joho. It noted there was no denial of service of the joinder application on KENHA and that the joinder had been disposed of on the premise that all affected parties were properly served. The issues turned on the applicability of Sections 67(a) and (b) to joinder, requiring no factual ascertainment.
Whether joinder of KENHA without prior one-month notice contravened Section 67(a) of the Kenya Roads Act
It did not. Section 67(a) governs commencement of actions against the Authority; a party joined by court order to existing proceedings joins, and does not commence, proceedings.
Neither the plaintiff nor the 1st defendant had a specific claim against KENHA; the joinder was under Order 1 rule 10(2) because KENHA was a necessary party to resolve whether the suit land was a road reserve. The statute is silent on court-ordered joinder to ongoing proceedings. Further, in the absence of a prescribed statutory form, service of the joinder application satisfied the notice's purpose of giving KENHA time to gather information.
Whether joinder of KENHA contravened Section 67(b) of the Kenya Roads Act (limitation)
It did not, because there was no claim against KENHA and thus no ascertainable date when a cause of action accrued or a limitation period began to run.
The court reasoned that limitation analysis presupposes a claim against the authority with an accrual date. Since KENHA was joined as a necessary party with no claim against it, no limitation period could be identified as having started or lapsed. Section 67(b) therefore had no application to the joinder of a necessary party to ongoing proceedings.
Costs of the preliminary objection
No costs awarded at this stage; costs to be in the cause, because the objection raised novel issues.
The court observed it had not encountered identical issues or any decision on the application of Sections 67(a) and (b) of the Kenya Roads Act to ongoing proceedings in the context of Order 1 rule 10(2). Given the novelty of the questions, it declined to make a costs award, reserving costs to the cause.
Legal principles established
#- A party joined to ongoing proceedings pursuant to an order under Order 1 rule 10(2) of the Civil Procedure Rules does not invalidate the joinder by reason of non-service of the one-month notice under Section 67(a) of the Kenya Roads Act, since there is no claim commenced against the Authority.
- Where no specific claim exists against a joined authority, no cause of action date can be fixed and limitation under Section 67(b) of the Kenya Roads Act cannot be invoked against the joinder.
- Service of the application seeking joinder can constitute proper notice under Section 67(a) where no specific statutory form of notice is prescribed, since the purpose of the notice is satisfied.
Court orders
#- 1.The preliminary objection dated 18/11/2025 and amended on 26/1/2026 is rejected and dismissed for lack of merit
- 2.Costs of the preliminary objection shall be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the land dispute; joinder ordered under Order 1 rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendwa & another (Suing as the Legal Representatives of the Estate of the Late Abrahim M'Kirera M'Ncau alias Abrahim M’Kirera M’Nchauu – Deceased) v Safaricom Plc & another (Environment and Land Case E020 of 2022) [2026] KEELC 3144 (KLR)", Case Analysis (2026). Not stated in the excerpt (suit instituted 3/11/2022 at Meru; Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3144/eng@2026-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.