Mahadi Investment Ltd v Kenya Railways Corporation & 3 others (Environment and Land Case E502 of 2024) [2026] KEELC 3899 (KLR)

vests in the members of the 2nd defendant/trust, courtesy of the Legal Notice Number 169 of 2006. 5. That the decision and or directions issued by the Hon. Court in this matter on the 20th day of December 2024 by the Hon Justice Oguttu be and is hereby varied to conform to the findings of this court. 6. That any other order as may be deemed fit by the Hon Court in protecting the Plaintifis rights and interests on the suit property. 7. That cost of the application be provided for. 2. The application is premised on the grounds inter alia that there was clear non-disclosure of material facts by the 1st defendant with regard to the ownership documentation of the suit property whose import is to have the court rule in favour of the 1st defendant. The application is further supported by the afidavit of Munayi Opondo Isaac, the authorized representative of the intended 2nd plaintifi/ applicant sworn on even date. 3. The intended 2nd plaintifi/applicant deposed that he is aware that the suit property herein was leased to the plaintifi herein in the year 2010 by the 2nd defendant and that both parties also entered into a sale agreement on 2nd February, 2015 wherein the suit property was handed over to the plaintifi on 3rd day March, 2015. It was further deposed that if the court is to grant the prayers on specific performance sought in the notice of motion dated 27th November, 2024, over 7000 members of the trust will be extremely prejudiced and disenfranchised of their rightful property. 4. It was deposed that instant application was informed by the 1st defendant/respondent un-procedural withholding on to the deeds of ownership of the suit property so that it was not possible to finalize the transaction as between the plaintifi and the 2nd defendant with regard to the sale of the suit property herein. Further, that the members of the 2nd intended plaintifi/applicant are not aware of any decision to have the suit property hived ofi from the vesting order under the custody of the 2nd defendant/respondent and transferred to the ownership of the 1st defendant/ respondent as is the previous finding of the court. The intended 2nd plaintifi/applicant deposed that there is likelihood of further disenfranchising the true owners of the suit property if the said decision/finding is not varied. 5. As advised by their advocates, it was deposed that, the sentiments expressed by the court at paragraph 50 of the impugned directives, are incorrect on the basis of the fact that the 2nd defendant/respondent is an irrevocable trust created under an irrevocable instrument so that the suit property herein cannot revert to the state as found by the trial court. That the irrevocable process that vested the ownership of the suit property upon the 2nd defendant/respondent by revising the Kenya Railways Corporation Act Cap 397 must be revisited and addressed if the said ownership has to revert back to the 1st defendant/ respondent, because as stated in the said paragraph, the suit property does not belong to the state, but to over 7000 members of the 2nd defendant/respondent vide the said Legal Notice Number 169 of 2006. That no such process is in place as to justify the impugned court directives, they seek review of the same. 6. The application was opposed by Philip J. Mainga, the managing director of the 1st defendant/ respondent through the replying afidavit sworn on 2nd March, 2026. The 1st defendant/respondent deposed that it is not clear who the intended 2nd plaintifi/applicant are and there is nothing to demonstrate that the deponent of the supporting afidavit works for the said applicant or has authority to swear the same from them. Further, that no relationship has been demonstrated and there is none with any of the parties in this suit, and neither do they have legitimate interest in the suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3899/eng@2026-06-29 2

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7. The 1st defendant/respondent averred that it appears that the intended 2nd plaintifi/ applicant is dissatisfied with the ruling of the court delivered on 20th December 2024, and that the reason for their joinder is to appeal against that ruling. To this end, the joinder of the 2nd intended plaintifi/applicant shall be a vanity fair because an application for review cannot lie for the reasons that an application for review can only be maintained where no appeal has been preferred; while In this case, the plaintifi filed an appeal against the ruling of Hon. Oguttu Mboya J delivered on 20th December, 2024. 8. Further, that the intended 2nd plaintifi/applicant has not pointed to the court fresh facts and evidence to warrant such a drastic step or any other grounds for review nor any other suficient cause to warrant joinder. It was deposed that the existing parties to this suit are suficient for the hearing and disposal of this suit and that the intended 2nd plaintifi/applicant is not a proper and necessary party with a direct legal interest in the suit and that their presence is not necessary for the final and efiectual adjudication of the suit. 9. The intended 2nd plaintifi/applicant filed what is headed as ‘Applicant’s response to the 1st Respondent’s afidavit’, which was not sworn before a Commissioner for Oaths. An unsworn afidavit is not an afidavit, and its content cannot be relied upon to support any argument or evidence. In this case, there is no proper afidavit filed for the court’s consideration. 10. The application was canvassed through written submissions. By the time of writing this ruling, none of the parties had filed their written submissions. Be that as it may, I have considered the application and the replies thereof. In my view, two issues arise for determination as follows:- 11. i. Whether the intended 2nd plaintifi/applicant should be joined to this suit. ii. Whether the intended 2nd plaintifi/applicant has met the threshold to warrant a review of the ruling delivered by Oguttu Mboya J on 20th December, 2024. Order 1 Rule 1 of the Civil Procedure Rules provides as follows:“ All persons may be joined in one suit as plaintifis 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.” 12. Further, Order 1 rule 10 (2) of the Civil Procedure Rules provides: “ 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 plaintifi or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintifi or defendant, or whose presence before the court may be necessary in order to enable the court efiectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 13. The Black’s Law Dictionary 8th Edition defines a “necessary party” as:“ a party, who being closely connected to a lawsuit, should be included in the case if feasible, but whose absence will not require dismissal of proceedings.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3899/eng@2026-06-29 3

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14. The Court of Appeal in JMK v MWM & another [2015] eKLR found as follows:“ Order 1 Rule (10) (2) of the Civil Procedure Rules empowers the court, at any stage of the proceedings, upon application by either party or suo motu, to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court efiectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party.” 15. The intended 2nd plaintifi/applicant contends that they should be joined to this suit as a second plaintifi, for the reason that the suit property LR Number 209/1064/1,2,3,4 and 5, Valley Road Nairobi measuring about 2 acres, vests essentially in them as members of the 2nd defendant/trust, courtesy of the Legal Notice Number 169 of 2006. 16. A closer look at the material placed before the court shows that the intended 2nd plaintifi/applicant was not a party to the sale agreement between the plaintifi herein and the 2nd defendant. Thus, they have no direct claim as a plaintifi against the defendants, and they cannot be joined as a claimant party. This is in line with the doctrine of privity of contract as was expressed by the court in the case of Mark Otanga Otiende v Dennis Oduor Aduol [2021] eKLR thus:“ In its classical adaptation, the doctrine of privity of contract hypothesizes that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party, except in certain cases only. In Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, Lord Haldane, LC rendered the principle thus: “My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.” “In the Agricultural Finance Corporation v Lengetia Ltd (supra), quoting with approval from Halsbury’s Laws of England, 3rd Edition, Volume 8, paragraph 110, Hancox, JA, reiterated that: “As a general rule a contract afiects only the parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.” 17. While I note that the intended 2nd plaintifi/applicant may be a member of the 2nd defendant’s retirement scheme, there is no documentation to support this allegation. If at all they are, any questions arising in this suit will be handled by the 2nd defendant whom I presume will represent their interests. Further, the court notes that the deponent of the supporting afidavit did not annex any signed authority to swear the afidavit on behalf of the applicant. The court cannot establish whether he indeed acts for the intended 2nd plaintifi/applicant or in his personal capacity. It is my finding that the intended 2nd plaintifi/applicant is not a necessary party for the efiectual and complete determination of issues arising in this suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3899/eng@2026-06-29 4

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18. For the benefit of the intended 2nd plaintifi/applicant, I will proceed to determine the second issue. The statutory provisions that govern review of court’s decision are Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Section 80 of the Act provides that:“ Any person who considers himself aggrieved— 19. a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b. no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit” Order 45 rule 1 of the Civil Procedure Rules provides that: “ Any person considering himself aggrieved— 20. 21. (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other suficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” Naikuni, J in the case of Masila & 2 others v Krotonite Enterprises Limited (Miscellaneous Application 31 of 2018) [2025] KEELC 4621 (KLR) summarized the requirements as was given by the Court of Appeal in the case of Vallabhdas Karsandas Raniga – Versus - Mansukhlal Jivraj and Others (1965) 1 EA 700(CAN) as follows:“ a. There should be a person who considers himself aggrieved by a decree or order; b. The decree or order from which an appeal is allowed but from which no appeal has been preferred; c. A decree or order from which no appeal is allowed by this Act; d. There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; or e. On account of some mistake or error apparent on the face of the record or for any other suficient reason, desires to obtain a review of the decree or order. f. The review is by the court which passed the decree or made the order without unreasonable delay.” While I place reliance on the above authority, and as averred by the 1st defendant/ respondent, an appeal against the ruling of the court delivered on 20th December, 2024 has already been preferred by the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3899/eng@2026-06-29 5

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plaintifi thereby disqualifies the same from being the subject of review as provided by the law, as it is not “a decree or order from which an appeal is allowed, but from which no appeal has been preferred.” 22. From the above, it is my finding that the notice of motion dated 1st December 2025 lacks merit and the same is hereby dismissed. Costs in the cause. The ruling in this matter applies to ELCLC No. E476 of 2024. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE, 2026. HON. MBOGO C.G. JUDGE 29/06/2026. In the presence of: Ms. Benson Agunga - Court assistant Mr. Mugo for the 2nd Defendant Mr. Mwangi for the 1st Defendant No appearance for Mr. Munai for the Intended Interested Party No appearance for Mr. Gitau for the Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3899/eng@2026-06-29 6

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