Matheta v Kithure & 11 others (Environment and Land Appeal E074 of 2024) [2026] KEELC 3085 (KLR)

1 Rule 10 [4], [7] and [16] of the Civil Procedure Rules, 2010; and wherein the Applicants [Proposed interested parties] seek the following reliefs: i. That the Honorable court be pleased to enjoin the applicants herein Gideon Baituni Kiunga, Genesia Mugambi M’kirichia, Chaka M’kirichia Margaret Mwari And Peter M’mautaas interested parties out of time. ii. That upon joinder the proposed interested parties herein be granted leave to participate on the matter out of time. iii. That the costs of this Application be provided for. 2. The Application is premised on various grounds. The grounds are: The proposed interested parties are the beneficial owners of the suit land; the proposed interested parties therefore have a stake in the suit property; the proposed interested parties were never joined in the lower court; the lower court matter was heard and determined without the involvement of the proposed interested parties; the orders that may issue in respect of the subject appeal will impact upon and afiect the proposed interested parties; and it is apposite that the proposed interested parties be joined in the appeal. 3. Additionally, it has been contended that the subject application has been filed without undue delay; and any delay [if at all] was occasioned by non-disclosure of the existence of the primary suit. Nevertheless, the proposed interested parties have posited that same have established suficient cause or basis to warrant the intended joinder. 4. Arising from the foregoing, the proposed interested parties have invited the court to find and hold that the same are truly interested in the matter and thus their joinder will enable the court to efiectively and efiectually determine the appeal. 5. The 1st to 11th Respondents filed a replying afidavit sworn on the 13.05.2026 and wherein the named respondents have opposed the application. Notably, the replying afidavit has been sworn by the 3rd respondent on his own behalf and on behalf of the rest of the respondents. The deponent of the replying afidavit has posited that the matter before the court is an appeal and the same by law ought to be determined on the basis of the record [namely, the evidence tendered in the lower court] and the law. 6. Furthermore, the 3rd respondent has averred that the proposed interested parties were not parties in the primary suit and hence the proposed interested parties cannot seek to bring forth or to adduce any evidence or material for purposes of consideration by this court. In addition, it has been posited that the proposed interested parties have not established/proven suficient cause to warrant joinder. 7. The appellant herein did not file any response to the application. Nevertheless, it is imperative to observe that learned counsel for the appellant indeed attended court and participated during the hearing of the subject application. Moreover, the appellant supported the proposed joinder. 8. The application came up for hearing on the 18.05.2026; whereupon the advocates for the parties intimated to the court that same were ready to proceed with the scheduled hearing. To this end, the court proceed to and issued directions. Sufice it to state that the application was duly canvassed by way of oral submissions. 9. Learned counsel for the proposed interested parties/applicants adopted the grounds contained in the body of the application; reiterated the contents of the supporting afidavit; and thereafter highlighted three [3] key issues. The issues are: The applicants are beneficial owners of the suit property; the applicants have a stake/ Interest in the suit property; and the orders/directions of the court will impact upon or afiect the proposed interested parties. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3085/eng@2026-05-18 2

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10. Furthermore, learned counsel for the applicant has submitted that the proposed joinder shall enable the court to efiectively and efiectually determine the entire dispute; particularly, the rights of the parties. In addition, the court was invited to find and hold that the intended joinder shall not prejudice the appellant and the respondents, whatsoever. 11. Learned counsel for the applicant supported the application. Counsel submitted that the proposed interested parties have demonstrated that same have a stake and interest in the suit property and by extension the appeal before the court. In addition, it has been submitted that the stake or interest by the proposed interested parties can only be addressed if and only if the proposed interested parties are joined. 12. The counsel for the appellant further submitted that upon the joinder of the proposed interested parties, same shall be at liberty to seek leave of the court to either adduce further evidence before this court or to consider making an appropriate application before the lower court for purposes of setting aside the judgment. 13. It was the further submissions for the learned counsel for the appellant that the proposed interested parties can also seek review before the lower court. Nevertheless, learned counsel conceded that insofar as the applicants were not parties to the suit in the lower court, same cannot tender or adduce additional evidence before this court. 14. Finally, learned counsel for the appellant has submitted that the proposed interested parties have established and proven suficient basis to warrant joinder in the appeal. To this end, the court has been implored to allow the application and afiord the applicants the opportunity to be heard in respect of the subject appeal. 15. The respondents opposed the application. Learned counsel for the respondents adopted the contents of the replying afidavit sworn on the 13.05.2026 and thereafter highlighted three [3] issues. The issues are: an appeal is canvassed and determined on the basis of the record and the law; the proposed interested parties have no stake or interest in the subject appeal; the interest of the proposed interested party [if at all] could only be dealt with in the subordinate court and not the subject appeal. 16. Learned counsel for the Respondents has contended that insofar as the proposed interested parties did not seek joinder in the lower court, the door for joinder stands closed. In any event, it was contended that the subject application is a ploy by the appellant to convolute the matter by seeking to bring on board the proposed interested parties. 17. Based on the foregoing, learned counsel for the named respondents has submitted that the subject application is devoid of merits; and same is merely intended to delay the hearing and determination of the appeal. In this regard, the court was invited to find and hold the application was pre-mature; misconceived and otherwise an abuse of the due process of the court. 18. Having reviewed the Notice of Motion Application; the supporting afidavit thereto; the replying afidavit in opposition thereto; and upon consideration of the submissions canvassed by/on behalf of the respective parties, only one [1] issue crystalize for determination. The issue is: Whether the proposed interested parties have established suficient cause/basis to warrant the intended joinder or otherwise. 19. Before endeavoring to discern whether or not the proposed interested parties have established suficient cause, it is important to underscore that the joinder of a party, whether as an interested party; necessary party; or amicus curie [friend of the court], whichever is the case, can only be undertaken if and only if the proposed joinder shall enable the court to efiectively and efiectually determine the issues in https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3085/eng@2026-05-18 3

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controversy. The joinder ought not to be taken where the proposed admission will be of no help/ assistance to the cause of justice. 20. Put difierently, the joinder of a party ought not to be undertaken for ornamental, aesthetic or cosmetic purposes. In any event, there is no gainsaying that court of law do not just make orders for mere sake of it or for mere asking. Instructively, court orders are intended to serve a legal and meaningful purpose. 21. In the case of Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR) , the Supreme Court [the apex court], considered and highlighted the circumstances where an interested party can be joined into a matter. 22. In addition, the apex court underscored the elements that must be proven before joinder of an interested party. Furthermore, the court also pointed out that even where there is a joinder of an interested party, the issue[s] for determination shall still be the ones canvassed/raised by the primary parties. Moreover, the Court posited that an Interested Party cannot canvass own cause of action in such a suit/ matter. 23. The Apex court stated thus: 41. Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/ principal parties’ before the Court. The determination of any matter will always have a direct efiect on the primary/principal parties. Third parties admitted as interested parties may only be remotely or indirectly afiected, but the primary impact is on the parties that first moved the Court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us. 42. Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues, or introduce new issues for determination by the Court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of an altogether a new issue to be introduced before the Court. 24. Back to the issue for consideration. The proposed interested parties are seeking to be joined in the subject appeal on the basis that same are the beneficial owners of the suit property. Sufice it to point out, that if [and I say if] the proposed interested parties had any beneficial entitlement to the suit property, then such entitlement would have been documented in terms of some annexture. However, it is important to highlight that other than the bare assertion[s], contained at the foot of paragraphs 3 and 4 of the supporting afidavit, there is nothing that has been exhibited. 25. Additionally, it is not lost on me that at paragraph number 3 of the supporting afidavit, it is averred that the suit property is [sic] stated to the registered in the name of the appellant and not the proposed interested parties. It is common ground that the subject appeal has been mounted by the appellant and hence there is no gainsaying that the appellant [who is said to be the registered owner] shall be at https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3085/eng@2026-05-18 4

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liberty to canvass and ventilate all the attendant issues pertaining to and concerning [sic] ownership of the suit property. 26. Other than the fact, that the proposed interested parties have not exhibited any material to vindicate that alleged beneficial interest or rights over the suit property, it is also important to point out that what is before me is an appeal. 27. Insofar as the matter is an appeal, it is common ground that no new/fresh evidence can be tendered by an interested party. I wish to add that even where a party to the appeal seeks to tender additional evidence, [which is not the case herein], there are parameters to be established and satisfied. [See the holding of the Supreme Court in the case of Zinj Limited versus Attorney General [2021] KESC [Ruling]. 28. To the extent that the no evidence or fresh evidence can be brought on board in the appeal by an interested party, the question that does arise is the purpose [if at all] that would be served by the proposed joinder. Surely, parties cannot be joined into a matter for the mere asking. Moreover, a court of law must also not allow a joinder, whose purpose is to convolute the matter/issues in dispute. 29. Finally, I wish to underscore that whatever the nature of the beneficial interests that the proposed interested parties have or had in the suit property, [if at all], could only have been interrogated by the trial court. The proposed interested parties, did not deem it apposite to seek joinder in the lower court. 30. To my mind, the failure by the Proposed Interested Parties/ Applicants to do so, has culminated into the door for joinder being closed. Conclusion 31. Flowing from the discussion in the body of the ruling, it is apparent that the proposed joinder, which is being sought in an appeal and not in the primary suit [which is determined] shall be of no meaningful purpose. I reiterate that joinder of parties is not for ornamental purposes. 32. Moreover, I wish to highlight that the proposed interested parties have not proven or established the purported beneficial rights. Notably, the burden of proving the assertion rested on the shoulders of the proposed interested parties. The burden was not discharged. Final orders 33. 34. In the premises, and taking into account the conclusions alluded to in the preceding paragraphs, the final orders that commend themselves to me are: i. The Application dated 04.05.2026 be and is hereby dismissed. ii. Costs of the Application be and are hereby awarded to 1st to the 11th Respondents only. iii. The Costs shall be taxed in the conventional way. It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 18TH MAY, 2026. OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the Presence ofMr. Zakayo- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3085/eng@2026-05-18 5

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Mr. Omari for the proposed Interested Parties/Applicants Mr. Mwanzia for the Appellant Mr. Ngunjiri Michael for the 1st to the 11th Respondents N/A for the 12th Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3085/eng@2026-05-18 6

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