Mwaniki & 2 others v Ndururi & 3 others (Environment and Land Petition E003 of 2024) [2026] KEELC 3987 (KLR)

1. Anthony Mubia Nderitu, the applicant, moved the court through the Notice of Motion dated 24 th November 2024 seeking for primarily leave to be joined in these proceedings as an Interested Party, and costs in the application. 2. The application is premised on the grounds appearing on its face and the supporting affidavit sworn by the Applicant deposing inter alia that he is a bona fide purchaser for value of one acre comprised in Rice Holding No. 1970 (D) Unit M15 Mwea Section. He avers that on 8th August 2023, he purchased the said portion from the 1st Respondent for a consideration of Kshs. 1,400,000/=. According to him, although the rice holding has not been formally transferred into his name, he is in possession thereof and has acquired a beneficial interest in it. 3. He further states that at the time of purchase, the 1 st Respondent had already been issued with farmer change documents and a tenant identification card in respect of the one-acre portion pursuant to a decree issued in Kerugoya CM ELC No. 117 of 2023. It is his case that he only became aware of this petition when the 1 st Respondent informed him that the matter was still pending before the Court. MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 2

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The Applicant contends that the petition directly concerns the rice holding from which he claims an interest and that any orders made herein are likely to affect his rights. He therefore asserts that it would be unjust to determine the petition without affording him an opportunity to be heard. He further occasioned maintains to the that parties no if prejudice he is would joined to be the proceedings. In support of his application, the applicant annexed a copy of the sale agreement dated 8 th August 2023, farmer change documents, licenses, and tenant identification records issued following implementation of the decree in Kerugoya CM ELC No. 117 of 2023. 4. The petitioners opposed the application through the replying affidavit sworn by the 1 st Petitioner on her own behalf and on behalf of the 2nd and 3rd Petitioners, deposing inter alia that, Joseph Mwaniki Gicigo, the deceased, was the lawful tenant of Rice Holding No. 1970 (D) Unit M15 Mwea Section, having inherited the same from his father, and that he held it in trust for himself, the 1st Petitioner, and their children. 5. The Petitioners deny that the Applicant possesses any legal interest requiring protection in these proceedings. They further dispute his assertion that he is in possession of the suit rice holding and contend that he has never taken possession thereof. They averred that the Applicant MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 3

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was not a party to Kerugoya CM ELC No. 117 of 2023, the proceedings of which form the subject of this petition, and neither was he involved in the impugned transfer. They further point out that one of the issues raised in the petition concerns the jurisdiction of the subordinate court that issued the decree sought to be impugned. It is their position that the constitutional and legal questions raised in the petition can be effectively determined without the Applicant's participation, and that the application should therefore be dismissed with costs. 6. The application submissions. The was canvassed by way learned counsel for of the written Applicant submitted inter alia that he has demonstrated a sufficient stake in the subject matter of the proceedings. Counsel relied on Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and argued that the Applicant falls within the definition of an interested party. Counsel submitted that the Applicant purchased the suit rice holding for valuable consideration and that any determination made in his absence would directly prejudice his interest in the property. It was further submitted that, unless joined in the proceedings, the MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 4

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Applicant would be denied an opportunity to defend his stake in the rice holding, contrary to the guarantees of fair hearing and access to justice under the Constitution. 7. On the other hand, the learned counsel for the Petitioners, submitted inter alia that the Applicant has failed to satisfy the threshold for joinder. Counsel argued that the Applicant's alleged interest is entirely dependent upon the rights claimed by the 1st Respondent and that he cannot claim a better title than the person through whom he derives his interest. It was further submitted that the Applicant was not a party to the proceedings in Kerugoya CM ELC No. 117 of 2023 and that the constitutional grievances raised in the petition concern the legality of those proceedings and the resultant decree. Counsel contended that the Applicant's intended participation would merely replicate the case of the 1st Respondent and introduce collateral issues relating to his alleged status as a bona fide purchaser for value, which are not matters arising for determination in the petition. 8. The issues arising in the instant application for the court’s determinations are as follows: a. Whether the Applicant has established sufficient grounds to warrant his joinder as an Interested Party in this petition. MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 5

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b. Who pays the costs? 9. The court has carefully considered the grounds on the notice of motion, the affidavit evidence, submissions by the learned counsel and come to the following determinations: a. The law governing joinder of interested parties is now settled. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an interested party as a person or entity that has an identifiable stake, legal interest, or duty in proceedings before the Court but who is not a party to those proceedings. In the case of Francis Karioki Muruatetu & Another versus Republic & 5 Others [2016] eKLR, the Supreme Court set out the principles guiding courts in joinder applications. The court held inter alia a person seeking admission as an interested party must demonstrate following three elements: i. First, the applicant must show a personal stake or legal interest in the matter. MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 6

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ii. Secondly, the applicant must demonstrate the prejudice likely to be suffered if not joined to the proceedings. iii. Thirdly, the applicant must identify the submissions intended to be advanced before the Court and demonstrate that such submissions are relevant and distinct from those already before the Court. b. The first question, therefore, is whether the Applicant has demonstrated a sufficient stake in the subject matter of the proceedings. The Court notes that the petition challenges the legality of the proceedings conducted in Kerugoya CM ELC No. 117 of 2023, the decree issued therein, and the consequential actions undertaken by the National Irrigation Authority pursuant to that decree. Notably, prayer (d) of the petition seeks invalidation and reversal of the changes effected in respect of Rice Holding No. 1970 (D) Unit M15 Mwea Section pursuant to the impugned decree. c. The Applicant's claim is founded upon those very changes. According to him, he purchased the oneacre portion after the 1st Respondent had already been recognized by the National Irrigation Authority MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 7

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pursuant to the decree now under challenge. It follows that the outcome of the petition may affect the foundation upon which the Applicant claims an interest in the rice holding. The Court is therefore satisfied that the Applicant has demonstrated an identifiable stake in the subject matter of the litigation. d. The second consideration is whether the Applicant has demonstrated prejudice likely to be suffered if he is not joined to the proceedings. The petition seeks orders which, if granted, may result in the quashing of the decree in Kerugoya CM ELC No. 117 of 2023 and the reversal of changes effected pursuant thereto. Since the Applicant's alleged interest is predicated upon those changes, it cannot be said that he is incapable of suffering prejudice from the eventual outcome of the petition. To that extent, the Court accepts that the Applicant has demonstrated the possibility of prejudice should the petition succeed. e. However, satisfaction of the first and second limbs does not automatically entitle an applicant to be joined in the petition. The Court must still consider whether the Applicant's participation is necessary for MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 8

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the effectual and complete determination of the issues before the Court. f. This brings the Court to the third limb of the Muruatetu test. The Applicant was required to demonstrate the nature of the submissions he intends to advance and how those submissions would assist the Court in determining the questions arising in the petition. The constitutional petition before the Court is principally directed at the legality and constitutionality of the proceedings in Kerugoya CM ELC No. 117 of 2023, the consent recorded therein, the decree issued on 24th July 2023, and the implementation of that decree. The Petitioners further challenge the subordinate court's jurisdiction and allege violations of their constitutional rights. g. The Applicant's proposed participation, however, revolves around an entirely different inquiry. The matters he seeks to place before the Court concern the purchase of the rice holding from the 1st Respondent, the consideration allegedly paid, the interest thereby acquired, and his assertion that he is a bona fide purchaser for value. Those issues do not arise from the pleadings before this Court. Neither do they assist in determining whether the impugned MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 9

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proceedings were lawful, whether the subordinate court possessed jurisdiction, or whether the Petitioners' constitutional rights were violated. h. The Court is mindful that joinder is not intended to admit every person who may ultimately be affected by the outcome of litigation. As observed by the Supreme Court in the Muruatetu case (Supra), an applicant must demonstrate a contribution that will aid the Court in effectually and completely determining the dispute before it. In the present demonstrated contribution case, what he the Applicant distinct legal would make has or not factual towards the determination of the constitutional and jurisdictional questions raised in the petition. Instead, his proposed participation would inevitably raise collateral issues concerning the validity of his alleged purchase and his claimed proprietary interests, matters that fall outside the scope of the petition as presently framed. The Court is therefore unable to conclude that his participation is necessary for the effectual and complete adjudication of the issues before it. i. In the final analysis, the Court finds that although the Applicant has demonstrated an identifiable stake in MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 10

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the subject matter of the petition, and has shown that he may be affected by the outcome thereof, he has failed to demonstrate that his participation is necessary for the effectual and complete determination of the constitutional and jurisdictional questions arising in the petition. He has further failed to demonstrate any distinct contribution that would assist the Court in resolving those questions. Accordingly, the Notice of Motion dated 24th November 2024 is devoid of merit. j. The intended interested party/applicant has failed in the application he will pay the petitioners’ costs, as I find no reasonable cause to direct otherwise. 10. Flowing from the foregoing conclusions, the court finds and orders as follows: a. That the joinder application dated 24th November 2024 is devoid of merit. b. That the said application id dismissed with costs. It is so ordered. MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 11

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DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 1ST DAY OF JULY 2026. S. M. Kibunja ELC JUDGE In the presence of: Petitioners – Mr. Magee Respondents – Mr. Mburu for 1st Respondent Mr. Muriithi for Kiongo for 2 nd Respondent Interested party – No Appearance 2nd intended interested party – Mr. Mburu Kinyua/Charles - Court Assistant S. M. Kibunja ELC JUDGE MICROSOFT OFFICE USERELC LPET NO. E003 OF 2024 (RULING) 12

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