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Original judgment

Komen v Vakeria & 7 others

Komen v Vakeria & 7 others (Environment and Land Case 43 of 2015) [2025] KEELC 18747 (KLR) (30 July 2025) (Ruling) Neutral citation: [2025] KEELC 18747 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE ENVIRONMENT AND LAND CASE 43 OF 2015 CK NZILI, J JULY 30, 2025 BETWEEN SAMMY KIPLIMO KOMEN ................................................................... APPLICANT AND BHIMJI DHANJI VAKERIA ........................................................... 1ST DEFENDANT FARAH MOHAMMED ISSA .......................................................... 2ND DEFENDANT KOOVERJI PREMJI VEKERIYA ................................................... 3RD DEFENDANT DARSHIL HARDWARE LIMITED ............................................... 4TH DEFENDANT PERPETUA WAKIO MWASARU .................................................. 5TH DEFENDANT SAMUEL MUKORA T/A SAMMARY AGENCIES ...................... 6TH DEFENDANT AND GEOFFREY Y LUTALO ..................................................... 1ST INTERESTED PARTY STEPHEN N MBONOH ................................................... 2ND INTERESTED PARTY RULING 1. The 1st and 2nd interested parties/applicants seek to arrest the ruling staled for 30/7/2025, for a similar application dated 8/4/2025 and to be allowed to le an amended notice of motion. The reasons are that the applicants wish to be joined as the 7th and 8th defendants and not as interested parties. It is deposed that the plaintis’ certicate of registration is fake and non-existent and so are the ones held by the 1st - 5th defendant, the parties have no letters of allotment, or even ocial search certicates for Kitale Municipality Block 7/225, the information was purposely withheld from the court, the intended parties are the rightful owners of the land as per a letter dated 10/1/1996 and that it is in the interest of justice to be joined as substantive parties in the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18747/eng@2025-07-30 1

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2. In the application dated 8/4/2025, the applicants rely on a supporting adavit dated 8/4/2025. They have attached a letter of allotment, a copy of RIM, receipt, an authenticated RIM on 11/11/1996, a copy of the plainti's title, a letter written to the Chief Land Registrar dated 23/6/2014, and a copy of the draft statement of defence as annexures GS- (1)-(6), respectively. 3. When the application dated 8/4/2025 came up on 17/6/2025, learned counsel on record for the plainti told the court that he was not opposed to it, learned counsel suggested that the applicant should come on record as substantive defendants and not as interested parties. Equally, learned counsel for the 1st – 5th defendants told the court that he was not opposed to prayer No. (3) of the application. Learned counsel, however, did not address the court on the grounds of opposition dated 23/6/2025 and a replying adavit of Paresh Gutka, sworn on 23/6/2026, opposing the application. 4. Parties rely on written submissions dated 16/7/2025, that they have demonstrated a stake, which they can only protect if they are joined as defendants, as per Order 8 Rules 3(1) and (5) of the Civil Procedure Rules. Reliance is placed on Central Bank Ltd -vs- Trust Bank (K) Ltd, Nairobi CA No. 222 of 1998, Eastern Bakery -vs- Castelino [1958] EA 461 and Monica Wamuhu Macharia -vs- Attorney General & Another CA No. 282 of 1998. 5. Joinder of parties as interested parties was considered in Trusted Society of Human Rights Alliance -vsMumo Matemu & Others [2014] eKLR. An interested party is one who has a stake in the proceedings and is likely to be aected by the decision. The parameters to consider include: whether the intended party has a personal interest or stake in the matter, whether his presence will enable the court to resolve all the matters in dispute, whether he would suer prejudice if not joined and whether the joinder will not vex the parties or convolute the proceedings. 6. In Francis Muruatetu & Another -vs- Republic & Others [2016] eKLR, the court held that whether a party is joined as an interested party or not, the issues for determination by the court remain those of the substantive parties or as framed by the court from the pleadings of the principal parties. Since the interested parties may not frame fresh issues or introduce new issues, the applicants herein, midstream, wish to amend their notice of motion dated 8/4/2025 and change states from an interested party to substantive defendants. 7. The plainti/respondent is not opposed to it. The 1st - 5th defendants/respondents oppose the same through grounds of opposition and replying adavit of Paresh Gutka, more so on the claim for an injunction based on alleged ownership of the parcel of land and challenge to the defendants’ ownership documents, said to be non-existent. 8. To join or not to join parties is a discretionary power of the court. It can be exercised at any stage of the proceedings, including after judgment or on appeal. It can be through a motion or by the court's own motion, so long as the party is necessary for the determination of the issue in controversy or where a party is a necessary party under Order 1 Rule 10(2) and Order 7 of the Civil Procedure Rules. See Eastern Bakery -vs- Castelino (supra). Joinder is not as of right. Sucient grounds must be laid before the court. The considerations are inter alia, that it will not lead to a practical problem of handling the existing cause of action, will not occasion unnecessary delay or costs to the parties and that the reliefs sought are not compatible with the existing cause of action. 9. The common denominator as held in Lucy Nungari Ngigi & Others -vs- National Bank of Kenya Ltd & Another [2015] eKLR, is whether there exists a common question of fact or law between the existing and the intended parties. 10. I think the intended parties have met the threshold set in the cited case law. They fall under the description of defendants and not as interested parties. The upshot is that I allow the application dated https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18747/eng@2025-07-30 2

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8/4/2025 to be amended as requested in the subsequent application. I see no basis to arrest the ruling. I proceed to allow the request for joinder only. The amended defence and counterclaim to be led and served within 7 days from the date hereof. The plainti and the other defendants are at liberty to amend their pleadings by 30/8/2025. 11. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 30TH DAY OF JULY 2025. HON. C.K. NZILI JUDGE, ELC KITALE. In the presence of: Court Assistant – Dennis Ingosi for plainti present Masai for Ambutsi for interested party present Ngeywa for 3rd defendant present https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18747/eng@2025-07-30 3

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