Amran & another

MOHAMMED SWALEH (SUING ON BEHALF OF THE ESTATE OF SWALEH ATHMAN) ................................................... 7TH INTENDED INTERESTED PARTY RULING I. Introduction 1. This Honourable Court was tasked with the hearing and determination of the Notice of Motion application dated 2nd August, 2024. It was led by Umi Yusuf Athman, Gabriel Mole Mbitha, Chanzera Mole Mbitha, Hussein Mole Mbitha, Teresia Njoroge (Suing on behalf of the Estate of Georey Francis Njoroge) and Mohammed Swaleh (Suing on behalf of the Estate of Swaleh Athman, the Intended Interested Parties/Applicant herein. The Application was premised under Sections 1A, 1B, 3A of the Civil Procedure Act, Cap. 21 and Order 1 Rule 10 (2) of the Civil Procedure Rules, 2010 and all the enabling provisions of Law. 2. Upon service of the Notice of Motion application the 3rd Defendant/ Respondent responded through a Relying Adavit sworn on 7th August, 2024 and the Plaintis responded through a Replying Adavit sworn on 4th August, 2024. II. The Intended Interested Parties’ case 3. 4. The Applicants sought for the following orders:a. That the Honourable Court do issue orders allowing the Interested Persons listed in the Letter of Authority issued to Umi Yusuf Athman to join this suit as Interested Parties and be allowed to defend the suit. b. That costs of this Application be provided for. The application was premised on the grounds, testimonial facts on the face of the application and averments made out under the 8 Paragraphed supporting adavit of Umi Yusuf Athman intended interest party to the current Originating Summons herein. The Deponent averred that:a. The Deponent and other interested parties owned shares within original Plot No.284/891 situated within Majengo Kanamai. Annexed in the adavit and marked as “UYA – 2” were a set of photocopies of their share certicates. b. The Deponent and other interested parties had come to know about the current Originating summons in which the Plaintis are claiming compensation in respect of the subdivisions to Plot No. 891/III/MN. c. The portion of land being claimed by the Plaintis did not belong to them as it is the community of Majengo D.O who donated the area to the then Provincial Administration to construct a District Ocers Oce and the Oces for a Ministry of education and the District Commissioners oce. d. The Deponent and the other shareholders were surprised by the fact that the Plaintis were claiming ownership of the entire original Plot No. 284/891 yet their shares also fall within the suit property and the Plaintis had not bothered to take their share into consideration and has proceeded to subdivide original Plot No.284/891 without informing them. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 2

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e. The Deponent and other shareholders were humbly praying to the Honourable Court to be allowed to join the suit as interested parties. f. The Deponent and the other shareholders shall assist the Honourable Court in coming to just decision in the current matter. III. The responses by the Plaintis 5. Hindu Akram Amran and Mariam Akram Amran, the Administrators of the estate of Akram Amrani Mohamed (Deceased) and the Plaintis herein and opposed the Notice of Motion application through a 16 Paragraphed Replying Adavit sworn on 4th August, 2024 where the Deponent averred that:a. The Intended Interested Parties Application was out of place, misinformed, and clearly intended to prejudice ourselves without any legal basis herein especially considering that at all material times, the late Akram Amrani Mohamed was the sole legitimate owner of the land parcel Majengo Kikambala Plot. MN/III/10203 (i.e. 0.105 Ha) which was part of the Mother Title namely; MN/111/891 (ORIGINAL NO. 284/100) (hereinafter referred to as “The Suit Property’). See annexures marked as ‘HM - 3’ & ‘HM - 4’ in the Supporting Adavit to the O.S dated 30th May 2024. b. The instant material suit was seeking compensation for illegal occupation of the ‘suit property’ by the 3rd Defendant herein and not a suit substantively premised on the ownership of the suit property by the late Akram Amrani Mohamed as the Intended Interested Parties herein seek to materially misleadingly be enjoined to argue and posit before this Honourable Court. This makes the Intended Interested Parties’ Application a non-starter and misplaced. c. Indeed the ownership of the suit property by the late Akram Amrani Mohamed had never been disputed and/or a suit instituted against the late Akram Amrani Mohamed and/or the Estate of the late Akram Amrani Mohamed by the Intended Interested Parties herein and/or any other person or entity including the Defendants’ herein questioning the ownership of the said suit property. d. From the lack of such court proceedings, declarations and/or orders the entirety of the Intended Interested Parties Application was misguided, misplaced and can only be termed as; scandalous, frivolous, and vexatious Application cunningly construed to cause a misjoinder of the Intended Interested Parties in the material suit. e. Contrary to the clearly false allegations of the Intended Interested Parties it is notable that; correspondences with the Defendants herein, Original Title and searches of the suit property issued by the registrar of lands Kili County, survey report of the suit property by the Kili Sub-County Surveyor, general report on the suit property and valuation report of the suit property have materially conrmed the ownership of the suit property by the late Akram Amrani Mohamed. Indeed, the Intended Interested Parties herein had never at any juncture instituted legal proceedings questioning the aforementioned documents which unequivocally recognize, the late Akaram Amrani Mohamed was the sole legitimate owner of the suit property. (See annexures marked as “HM - 3”, “HM - 4”, “HM - 5”, “HM - 6”, “HM - 7” & “HM - 8”, in the Supporting Adavit to the O.S dated 30th May 2024). f. The parties were bound by their pleadings and in the circumstances considering that the prayers in the instant material suit as constituted in the Originating Summons dated 31st May, 2024 were materially sought compensation for illegal occupation of the “suit property”by the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 3

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3rd Defendant herein and the Intended Interested Parties were procedurally inhibited by law to introduce alien unsupported allegations and claims of ownership of the suit property or their own unrelated claim for compensation in the instant suit. g. Indeed they were advised by their Advocates that recourse to the Intended Interested Parties claims was not the instant suit and/ or forum. h. Premised on the foregoing, this Honourable Court lacks jurisdiction to entertain the Intended Interested Parties alien unsupported allegations and claims of ownership of the suit property in the instant suit. This was considering that the issues they had presented before this Honourable court for determination are clearly at variance with the Intended Interested Parties alien unsupported allegations and claims in their Application. i. Further to the foregoing, and premised on the foregoing reasons as adduced above the Intended Interested Parties' Application miserably failed to meet the legal threshold for enjoinder as interested parties in as was clearly spelt out in the seminal locus classicus decision by the Supreme Court of Kenya in the case of” “Francis K. Muruatetu and Another - Versus Republic & 5 others (2016) eKLR”. j. Indeed this Honourable Court should take further judicial notice that since the year 2011, the Defendants had never disputed ownership of the suit property by the late Akaram Amrani Mohamed and/or recognized any other party to have either bequeathed/donated the suit property to the 3rd Defendant making all the Intended Interested Parties allegations as contained in their Application baseless, ill-informed and a cunning tactic to mislead this Honourable Court and prejudice our claim for compensation before this Court. k. Most notably, the Defendants through their; correspondences, actions like; undertaking survey, issuing oral undertakings to make compensation, negotiating settlement, proposing settlement out of court et.al have unequivocally recognized the sole ownership of the suit property by the late Akaram Amrani Mohamed and as public authorities created a legitimate expectation of their clear intention to compensate the estate of the late Akaram Amrani Mohamed. This makes all the allegations by the Intended Interested Parties overtaken by events and a non-starter and as such their Application should be dismissed with costs. l. Indeed it was their considered view that the instant Application by the Intended Interested Parties was only intended to prejudice the right to compensation of the Estate of the late Akaram Amrani Mohamed for illegal occupation of the suit property by the 3rd Defendant by causing delay in the determination of their suit plaint as led before this Honourable Court. m. It was in the interest of justice that the Intended Interested Parties’ Application be dismissed with costs for lack of merit and to ensure judicious use of the available judicial resources. n. The Adavit was sworn in opposition to all the orders sought by the Intended Interested Parties in their application as led herewith. IV. The responses by the 3rd Defendant 6. On behalf of the 3rd Defendant, the Deputy County Commissioner, Kili County responded to the Notice of Motion application through an 8th Paragraphed Replying adavit. It was sworn by Victor K. Kamonde, the Deputy County Commissioner, Kili South Sub-County on 7th August, 2024 where he averred that:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 4

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a. The Oce of the Deputy County Commissioner-Kili South, the 3rd Defendant herein, was established in the year 1998 as the Oce of the District Ocer Kikambala Division. It currently sat within two parcels of land - 0.252Ha in MN/III/890 and 0.105Ha in MN/ III/10203 as per the Sub-County Surveyor’s report dated 12th February, 2024. (Annexed in the adavit and marked as ‘VK 1’ was a true copy of the Sub-County Surveyor’s Report.). b. The ocer of the 3rd Defendant had ocially rented an oce in Majengo, Kanamai from an Indian known as Primji Hirani when it was established in 1998. However, due to rent dierences, and with the help of the local community through its leadership, the Oce was allocated land on Plots MN/III/890 and MN/III/891 which had been set aside and earmarked for community development withagreement of the late Mr. Akram Amrani. (Annexed in the adavit and marked as “VK - 2” was true copy of a Task Force Report on Plot No. 284/III/ MN-Kanamai). c. The new Oce was set up by the community and ocially opened in the year 2006. The allegation therefore, of occupation for over 20 years is misguided and false. d. It was upon the ocial occupation by the 3rd Defendant in 2006 that Akram Amrani Mohammed (deceased) and others surfaced and demanded to be given sale agreements in order to dispose of part of the suit property-MN/III/89. e. The eorts to have them sell the suit property to the Government met a lot of resistance from the community which believed that the 1-acre piece of land was part of a mandatory public utility hived from MN/11I/890 and MN/1ll/891. This resistance was equally necessitated by the positive impact the oce had brought by bringing services closer to the community. f. The Defendants were willing to settle this matter out of court in order for the 3rd Defendant to continue serving the people. V. Submissions 7. On 17th September, 2024 while all the parties were present in Court, they were directed to have the Notice of Motion applications dated 2nd August, 2024 be disposed of by way of written submissions. Pursuant to that, at the time of penning down this Ruling, the Honourable Court was only able to access the submissions by the Plaintis herein. On 16th December, 2024 a ruling date was reserved on 24th February, 2025 but eventually delivered on 28th March, 2025 by Court on its own merit accordingly. Issue b. The Written Submissions by the Plainti in Opposition to the Application dated 2nd August, 2024 8. The Plainti through the Law rm of Messrs. MPL Advocates LLP led their submissions dated 18th December, 2024. Mr. Mureithi Advocate submitted that on 2nd August, 2024, the Intended Interested Parties herein lodged the Notice of Motion Application dated 2nd August 2024 before this Honourable Court seeking to be enjoined in the instant suit as interested parties. On 4th August 2024 the Plainti's led the Replying Adavit dated 4th August 2024 opposing the Application dated 2nd August 2024 premised on the following summarized grounds:i. The Intended Interested Parties Application is out of place, misinformed, and clearly intended to prejudice ourselves without any legal basis herein especially considering that at all material times, the late Akram Amrani Mohamed was the sole legitimate owner of the land parcel https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 5

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Majengo Kikambala Plot.MN/III/10203(i.e.0.105 Ha) which is part of the Mother Title namely; MN/111/891 (Original No.284/100); 9. 10. ii. The instant material suit was seeking compensation for illegal occupation of “the Suit property” by the 3rd Defendant herein and not a suit substantively premised on the ownership of the suit property by the late Akaram Amrani Mohamed as the Intended Interested Parties herein seek to materially misleadingly be enjoined to argue and posit before this Honourable Court; iii. The ownership of the suit property by the late Akram Amrani Mohamed had never been disputed and/or a suit instituted against the late Akram Amrani Mohamed and/or the Estate of the late Akram Amrani Mohamed by the Intended Interested Parties herein and/or any other person or entity including the Defendants' herein questioning the ownership of the said suit property. In lack thereof of such court proceedings, declarations and/or orders the entirety of the Intended Interested Parties Application is misguided, misplaced and can only be termed as; scandalous, frivolous, and vexatious Application cunningly construed to cause a misjoinder of the Intended Interested Parties in the material suit and; iv. The Intended Interested Parties’ Application miserably failed to meet the legal threshold for enjoinder as interested parties in as was clearly spelt out in the seminal locus classicus decision by the Supreme Court of Kenya in the case of; “Francis K. Muruatetu and Another – Versus - Republic & 5 others (Supra)”. On the issues for determination the Learned Counsel relied on the following two issues. Firstly, whether the intended Interested Parties should be enjoined in the instant suit as interested parties. The Learned Counsel submitted that the Intended Interested Parties herein Application dated 2nd August 2024 should be dismissed with costs as it miserably fails to meet the legal threshold for enjoinder as interested parties as was clearly spelt out in the seminal locus classicus decision by the Supreme Court of Kenya in the case of; “Francis K. Muruatetu and Another – Versus - Republic (Supra)”. The Law on joinder of Interested Parties to suits had been settled by the Supreme Court of Kenya. In the case of; “Muruatetu & another – Versus - Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015(Consolidated))[2016] KESC 12 (KLR)(Civ)(28 January 2016) (Ruling)”,the court set out identiable key elements for consideration in an application for joinder as an Interested Party. The elements were as follows:a. The Personal interest or stake that the party has in the matter must be set out. The Interest must be clearly identiable and must be proximate enough, to stand apart from anything that is merely peripheral b. The prejudice to be suered by the intended Interested Party in case of non - joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote; c. Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court. It was their submission, that the Application dated 2nd August 2024 should be dismissed with costs as it miserably fails to meet the elements aforelisted for the following reasons:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 6

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i. 11. The Intended Interested Parties Application is out of place, misinformed, and clearly intended to prejudice ourselves without any legal basis herein especially considering that at all material times, the late Akram Amrani Mohamed is the sole legitimate owner of the land parcel Majengo Kikambala Plot.MN/III/10203 (i.e. o.105 Ha) which is part of the Mother Title namely; MN/111/891 (Original No.284/100); ii. The instant material suit is seeking compensation for illegal occupation of the ‘suit property’ by the 3rd Defendant herein and not a suit substantively premised on the ownership of the suit property by the late Akram Amrani Mohamed as the Intended Interested Parties herein seek to materially misleadingly be enjoined to argue and posit before this Honourable Court and; iii. The ownership of the suit property by the late Akram Amrani Mohamed has never been disputed and/or a suit instituted against the late Akram Amrani Mohamed and/ or the Estate of the late Akram Amrani Mohamed by the Intended Interested Parties herein and/or any other person or entity including the Defendants' herein questioning the ownership of the said suit property. In lack thereof of such court proceedings, declarations and/or orders the entirety of the Intended Interested Parties Application is misguided, misplaced and can only be termed as; scandalous, frivolous, and vexatious Application cunningly construed to cause a misjoinder of the Intended Interested Parties in the material suit. Secondly, which party should bear the costs of the application. The Learned Counsel averred that it is trite law that costs follow events. This principle of law is buttressed by Section 27 of the Civil Procedure Act Cap 21 in the following terms verbatim; “ ...Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.” 12. The Learned Counsel relied on the case of “DGM – Versus – EWG [2021] eKLR”, the court in its decision stated that:“ The import is that a successful party is entitled to costs unless he or she is guilty of any misconduct or there exists some other good reasons and or cause for not awarding costs to the successful party.” In Reid, Hewitt & Co v Joseph, AIR 1918Cal 717 and Myres – Versus - Defries (1880) 5 Ex D 180, the house of Lords noted that:The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under dierent causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it”. The principle that costs follows the event was dened and noted by the House of Lords.” 13. The Learned Counsel submitted that the costs of this Application should be awarded to the Plaintis having demonstrated the unmeritorious nature of the Application dated 2nd August, 2024. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 7

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14. In conclusion the Learned Counsel opined that the Application dated 2nd August, 2024 was unmeritorious and as such ought to be dismissed with costs. VI. Analysis and Determination 15. I have carefully read and considered the pleadings herein and the relevant provisions of the Constitution of Kenya, 2010 and statures made by the Learned Counsel. In order to arrive at an informed decision, the Honorable Court has two (2) framed the following issues for determination. These are:a. Whether the Application for joinder of interested party is merited. b. Who will bear the Costs of Notice of Motion application dated 2nd August, 2024. Issue No. b). Whether the Application for joinder of interested parties is merited. 16. Under this sub – title, the Honourable Court shall examine whether the Applicant should be joined as a party in the suit. It is instructive to note that before a party is enjoined in a matter, the court ought to satisfy itself that the proceedings are alive. That means that the suit must still be pending before the Court. Therefore, the applicant must move the Court during the pendency of the proceedings in that matter. Again, besides the proceedings being pending there should be not bar to them going on, so much so that if there are orders staying the proceedings then the party cannot move the Court since the proceedings are ‘frozen’ until the orders are lifted, vacated or set aside. 17. For the proposition that the proceedings must be pending, this Court relies on the cases of “Florence Nafula Ayodi & 5 others – Versus - Jonathan Ayodi Ligure, John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (applicants/intended interested parties) [2021] eKLR” and “Elizabeth Nabangala Wekesa – Versus - Erick Omwamba & 3 Others; Esther Momanyi Omwamba (applicant) [2021] eKLR”. In the rst case, this Court held that in case a party wishes to be enjoined in a matter, the case must be either be at “the nascent or other stages but must be alive.” In the second case, it was held that in case a party moves the Court to be joined as a party, “there is no doubt anymore that if a party wishes to be joined in a matter he or she must move the Court during the pendency of the proceedings in that matter… the main point is that it (suit) is still alive.” 18. Similarly, in the case of:- “Leonard Kimeu Mwanthi – Versus - Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR”, Lady Justice Mbugua J stated, “A party claiming to be enjoined in proceedings must have an interest in the pending litigation…” From the facts of the instant case, this suit has neither been heard nor nalized. If anything, it is proceeding with applications at the interlocutory stage. Therefore, this stage is appropriate for the application of this nature. 19. It is worth noting that an application for joinder of an interested party may be made even at the appellate stage of the proceedings. The only condition to be met rst is that the proceedings are still alive. The second point that the Court should take care of is that the proposed interested party should not use the procedure to institute a fresh suit, particularly if his application is made at the appellate stage. 20. On these two points I am guided by the holdings of the Court of Appeal and Supreme Court of Kenya respectively the following cases. The applicant in “David Kiptugen – Versus - Commissioner of Lands, Nairobi & 4 others [2016] eKLR” led an application before the Court of Appeal to be joined as an https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 8

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interested party to the appeal and for remission of the matter back to the trial court for hearing de novo. The court allowed that application and held; “ We agree with Ms. Kirui that whatever the outcome of the appeal, if the applicant is not joined in this appeal, he will be deprived of an opportunity to be heard on his claim to the ownership of the suit land. That will of course be unconstitutional and against the rules of natural justice.” 21. Second, in the case of “Communications Commission of Kenya & 4 Others – Versus - Royal Media Services Limited”, the Supreme Court in declining a similar application for joinder of an interested party held:“ The applicant now seeks to be enjoined in this matter, even though it was neither a party at the High Court nor at the Court of Appeal. The applicant has not demonstrated how the ends of justice would better be served by enjoining it in the appeal… We cannot exercise our discretion to enjoin a party that disguises itself as an Interested Party, while in actual fact merely seeking to institute fresh cause.” 22. The provision of Order 1 Rule 1 of the Civil Procedure Rules, 2010 under which the application is brought provides as hereunder: All persons may be joined in one suit as plaintis in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise. 23. Further, the provision of Order 1 Rule 10 (2) of the said Rules provides that:“ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plainti or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 24. The relevant tests for determination whether or not to join a party in proceedings were restated by Nambuye, J (as she then was) in the case of “Kingori – Versus - Chege & 3 Others [2002] 2 KLR 243” where the learned Judge stated that the guiding principles when an intending party is to be joined are as follows: 1. He must be a necessary party. 2. He must be a proper party. 3. In the case of the defendant there must be a relief owing from that defendant to the plainti. 4. The ultimate order or decree cannot be enforced without his presence in the matter. 5. His presence is necessary to enable the Court eectively and completely adjudicate upon and settle all questions involved in the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 9

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25. In the case of: “Departed Asians Property Custodian Board – Versus - Jaer Brothers Limited [1999] 1 EA 55” it was held as follows:“ A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court eectually and completely adjudicate upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court eectually and completely adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit is necessary for eectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the Plainti seeks in the suit, would legally aect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the defendant cannot eectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” 26. In the case of:- “Civicon Limited – Versus - Kivuwatt Limited and 2 Others [2015] eKLR” the court observed as follows: “ Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably aected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a Defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suered by the party and the practicability of the execution of the order sought in the suit, in the event that the Plainti should succeed. We may add that all that a party needs to do is to demonstrate sucient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.” 27. In this case, the intended interested parties are seeking leave to be joined to be able to participate in the proceedings being that the Deponent and other interested parties owned shares within original Plot No.284/891 situated within Majengo Kanamai. The portion of land being claimed by the Plaintis does not belong to them as it is the community of Majengo D.O who donated the area to the then Provincial Administration to construct a District Ocers Oce and the Oces for a Ministry of education and the District Commissioners oce. The Deponent and the other shareholders were surprised by the fact that the Plaintis were claiming ownership of the entire original Plot No. 284/891 yet their shares also fall within the suit property and the Plaintis had not bothered to take their share into consideration and has proceeded to subdivide original Plot No.284/891 without informing them. 28. The Deponent and other shareholders were humbly praying to the Honourable Court to be allowed to join the suit as interested parties. The Deponent and the other shareholders shall assist the Honourable Court in coming to a just decision in the current matter. This Court relies on the case of “Martin https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 10

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Kirima Baithambu – Versus - Jeremiah Miriti [2017] eKLR”, where the court pronounced itself as hereunder: “ The pragmatic reality has been for courts to add parties in a suit based on guarantee if it is desirable to add such party so that the court can resolve all the matters in controversy eectually and completely. Aptly here would be to invoke the procedure provided under Order 1 Rule 15 of the Civil Procedure Rules. I say these things for the sake of jurisprudence.” 29. Accordingly, based on the foregoing reasoning, I strongly nd great merit in the application for joinder. Thus, it must be allowed. In the meantime, the parties may continue exploring the out of court negotiation aimed at a arriving a settlement. Issue No. c. Who will bear the Costs of Notice of motion application dated 2nd August, 2024 30. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court rearmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 31. In the present case, upon various consideration, the Honourable Court elects to have costs in the cause. VII. Conclusion & Disposition 32. In long analysis, the Honorable Court has carefully considered and weighed the conicting parties’ interest as regards to Preponderance of Probabilities and balance of convenience. Having said that much, in a nutshell, I proceed to order the following:a. That the Notice of Motion application dated 2nd August, 2024 by the Interested parties is found to have merit and is hereby allowed. b. That an order be and hereby issued allowing the Interested Persons listed in the Letter of Authority issued to UMI YUSUF ATHMAN to join this suit as Interested Parties and be allowed to defend the suit. c. That the Plainti granted 14 days leave to amend, le and serve the Plaint to reect the orders of this Court accordingly. d. That for expediency sake the matter to be mention on 21st May, 2025 before Hon. Justice Olola for further direction on the disposal of the matter thereof. e. That in the meantime, parties are encouraged to continue exploring the amicable out of Court negotiation with a view of attaining a settlement through a recorded Consent as this is in tandem with the Judiciary AJS policy and the provision of Article 159 (2) (c) of the Constitution of Kenya, 2010 and Section 20 (1) and (2) of the Environment & Land Court Act, No. 19 of 2011. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 11

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f. That the costs shall be in the cause. It is so ordered accordingly. RULING DELIVERED THROUGH THE MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT MOMBASA THIS ……28TH DAY OF MARCH 2025. ……………………………………… HON. MR. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT MOMBASA Ruling delivered in the presence of: M/s. Firdaus Mbula, the Court Assistant. Mr. Mureithi Advocate for the Plaintis. M/s. Mwanaszumbah Advocate for the 1st, 2nd, 3rd, 4th & 5th Defendants. No appearance for the Interested Parties. HON. LL NAIKUINI (JUDGE) https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18749/eng@2025-03-28 12

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