Waithera v Narok County Executive Committee Member for Land, Housing, and Urban Development & 2 others

RULING 1. The matter for determination is the Notice of Motion Application dated 25th May 2026, which is brought under Sections 1A, 1B,3,3A and 63(e) of the Civil Procedure Rules and all other enabling provisions of the law, wherein the Applicant has sought for the following Orders: a. That the proposed Interested Party herein be joined in these proceedings. b. That there be a stay of further proceedings herein pending the hearing and determination of this application inter parties. c. That this Honourable Court be pleased to make such other and or further Orders that it may deem t and just to grant d. That costs of this Application be in the cause. 2. The Application is supported by the Grounds enumerated on the face of the Application and on the Supporting Adavit dated 25th May 2026, and Sworn by the proposed interested party herein Emily Koonyo 3. The Application is opposed by the Applicant to the main suit vide her Grounds of Opposition dated 15th June 2025, wherein he contended that the said by the Proposed Interested Party is mala des, afterthought, misconceived ,frivolous vexatious and an abuse of the court process: 4. Further that the said application is meant to drag the parties herein in unending litigation, and that the joinder of the proposed interested party is not intended to aid the court determines the real issues between the parties or correct any errors, but is a guised attempt at introducing a new case and that it is a delay tactic to hinder the Applicant from enjoying the fruits of the Judgment issued in Narok CMCC No. 123 of 2006. 5. That the proposed interested party’s claim is fashioned to introduce new claims, that had already been successfully and conclusively litigated in Narok CMCC NO. 123 of 2006. 6. The court directed that the said Application be canvassed by way of written submissions. However, at the time of writing this ruling, only the Applicant and the proposed interested party had led their respective written submissions dated 8th July 2026 and 9th July 2026 respectively. Proposed Interested Party’s Submissions 7. The proposed interested party set out the issues for determination as follows; i. Whether her joinder would occasion prejudice to the parties or whether it would advance the principles of natural justice and fair hearing ii. Whether the Applicant’s objections based on res judicata, delay, and abuse of process are sustainable in law given the nature of judicial review proceedings. iii. whether this Honorable Court should exercise its discretion to enjoin the Proposed Interested Party so that the matter is conclusively determined on merits. iv. who should bear the costs of the instant Applications. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5443/eng@2026-09-17 2

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8. On joinder, the proposed Interested party submitted that she deserves to be joined in this matter, and be granted stay orders for the reasons that the prayers sought by the Applicant in these proceedings concerns Plot No. 212 Block 7 Narok Town, in her possession, and registered in her name. She argued and submitted that she ought to be joined to defend her interest. 9. The proposed interested party further submitted that the Applicant’s seeks Judicial Review prayer of mandamus, compelling the County Government of Narok to amend its records to reect her alleged ownership of Plot No. 212 Block 7 Narok Town and that proceedings without the proposed interested party would be adjudicating her rights in her absence. 10. The interested party relied on the case of Pashito Holdings Ltd & Another v Paul Nderitu Ndungu & 2 Others [1997] eKLR, where the Court emphasized that where a party’s rights are directly aected, he must be aorded an opportunity to be heard. 11. It was her further submission that this Court is invited to appreciate that Judicial Review is a special jurisdiction, distinct from ordinary civil litigation, and its focus is not on relitigating merits, but on interrogating the legality, propriety, and fairness of administrative action. 12. The proposed interested party further submitted that her proprietary rights are directly implicated and that excluding her would amount to condemning her unheard, which this Court cannot sanction. 13. The proposed Interested Party further relied on the case of Trusted Society of Human Rights Alliance v Mumo Matemu [2014] eKLR, wherein the Court held that joinder should be allowed where it aids the Court in conclusively determining the matter, provided no prejudice is occasioned. 14. It was her further submissions that as a registered proprietor, she has the locus standi to be a party to the present proceedings, and that she is not introducing a new cause of action. Further, that her interest is not peripheral, but central and that without her participation, the Court risks issuing orders in vain, unenforceable against the true proprietor. 15. The proposed interested party also submitted that her application is not an attempt to reopen CMCC No. 123 of 2006; it is a necessary step to protect her proprietary interest against administrative enforcement that touches on her land. She further added that the Applicant’s attempt to invoke the doctrine of res judicata here to misapply the doctrine. 16. The proposed interested party relied on the case of Republic v Registrar of Societies ex parte Moses Kirima [2004] eKLR, where the Court claried that res judicata does not bar challenges to administrative implementation where rights are implicated. 17. Lastly, the proposed interested party prayed that her application be allowed with costs. Applicant/Respondent’s Submissions 18. 19. On the Other hand, the Applicant set out the issues for determination as follows; i) Whether the Application dated 25th May 2026 is merited? ii) Who should bear costs of the Application? The Applicant/Respondent submitted and argued that the Proposed Interested Party’s claim is fashioned to introduce new claims, that had already been successfully and conclusively litigated in Narok CMCC NO. 123 of 2006. The Applicant further argued that the Proposed Interested party does not have any stake in the present proceedings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5443/eng@2026-09-17 3

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20. The Applicant relied on the case of William Koross V Hezekiah Kiptoo Komen & 4 others (2015) Eklr, where the court stated that: “ litigation must come to an end; this rule is to counter the all too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add costs.” 21. The Applicant further submitted that the proposed interested party wants to re-litigate a cause of action that was successfully litigated and concussively determined in Civil Case NO. 123 of 2006. Further, that this will in turn culminate to delay of justice, and an abuse of the court process dragging the parties into endless litigation. 22. The Applicant relied on the case of Trusted Society of Human Rights Alliance vs Mumo Matemo & 5 others, Supreme court petition No. 12 of 2013, where the court dened an interested party to be…… an interested party has a stake/interest directly in the case……such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings and champions his or her cause” 23. The Applicant further submitted that the Proposed Interested party possesses no interest or stake in the proceedings, as the proceedings in this court is intended to enforce the judgment issued in Narok Civil Case No. 123 of 2006. 24. The Applicant/Respondent thus prayed that the Proposed Interested Party’s application dated 25th May 2026, entirely with costs be dismissed entirely with costs. 25. The Court has carefully considered the instant application, the Grounds in support and the rival written submissions and nds the issue for determination are as follows; i. Whether the instant Application dated 25th May 2026 is merited ii. Who bears the costs of this Application? Analysis and Determination i. Whether the Application Dated 25th May 2026 is Merited 26. From the arguments advanced by both parties, it require this Court to peruse the judgment in Narok CMCC NO. 123 of 2006 and the certicate of order against the government, and ascertain whether the proposed Interested party’s presence is necessary to determine the issues in the present proceedings. 27. The Applicant has annexed these documents in her Verifying Adavit sworn on 12th November 2025 ,in support of her Ex parte Chamber Summons of the same date. The said documents are marked as annextures GW2 and GW3 ,at paragraph 5 and 6 of her Verifying Adavit. 28. Declaration 1 of the said the Judgment states as follows: “ It is hereby declared that the plainti Grace Waithera, is the Bonade owner of Plot No. Block 7-Narok Town and that 1st , 2nd and 4th Defendants are trespassers thereon and are not entitled to the use and occupation thereof.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5443/eng@2026-09-17 4

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29. Declaration 8 further states that: “ The 4th defendant’s claim against the County Government of Narok succeeds to the extent that she is entitled to be shown where plot No. 283 Block 7 aka Plot No. 97 Block 7 is or to be allocated an alternative plot.” 30. The certicate of Order against the government further cements this position that the 1st, 2nd and 4th Defendants in Narok CMCC NO. 123 of 2006, are trespassers and are thus not entitled to the use and occupation of the suit land herein. 31. The Court has considered Order 1 Rule 10 of the Civil Procedure Rules which was relied upon by the proposed interested party, and which allows the court to add a party in a matter only when it is just to do so 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. 32. Consequently, this Court is persuaded that the Proposed Interested Party is not a necessary party for the eectual and complete determination of the issues arising in these proceedings. The Applicant's application is conned to seeking leave to institute judicial review proceedings against the Respondents with a view to compelling them to implement and give eect to the orders issued in Narok CMCC No. 123 of 2006. The validity, legality, or propriety of those orders has not been challenged in these proceedings, nor is there any Appeal pending against the Judgment or decree in the said suit. 33. The issues sought to be raised by the Proposed Interested Party fall outside the scope of these proceedings. These are Judicial Review proceedings, whose remit is limited to the legality of the decision-making process, and the enforcement of public duties (in this instance implementing the orders issued in Narok CMCC No. 123 of 2006). This Court is not called upon to determine questions relating to occupation, ownership, or the validity of title to the suit property, namely Plot No. 212, Block 7, Narok Town, as such matters fall outside the jurisdiction invoked in the present application. 34. In any event, the Proposed Interested Party was, in Narok CMCC No. 123 of 2006, found to be a trespasser upon the suit property. Those ndings remain valid and binding, there being no evidence that the said Judgment has been set aside, reviewed, or overturned on appeal. This Court, while exercising its judicial review jurisdiction, cannot reopen or revisit those ndings, as to do so would amount to sitting on appeal over a decision of a court of competent jurisdiction. 35. If by any chance, the Proposed Interested Party remains in occupation of the suit property herein or has subsequently procured registration in her favour contrary to the subsisting court orders, those are matters that cannot be regularized or validated through these proceedings. To permit her joinder for the purpose of reopening issues that have already been conclusively determined would oend the doctrine of nality in litigation and undermine the authority of the judgment in Narok CMCC No. 123 of 2006. 36. Such joinder would serve no useful purpose in the determination of the issues before this Court, and would only provide the proposed Interested Party with an opportunity to relitigate matters that are res judicata. Consequently, this court nds and holds that the application for joinder lacks merit, as the said application appears to amount to an attempt at forum shopping. 37. The Proposed interested party should be follow up on her plot No. 283 Block 7 aka Plot No. 97 Block 7 as ordered by the court in Narok CMCC No. 123 of 2006, instead of engaging in perpetual litigation with the Applicant over the suit property that a court of law has already determined that it belongs to the Applicant/Respondent herein, and which determination has not been set aside. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5443/eng@2026-09-17 5

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38. This Court relies on the case of Lucy Nungari Ngigi & 128 others V National Bank of Kenya Limited & another [2015] KEHC 6117 (KLR), where the Court held; “ joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other word, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally dierent from existing cause of action or the relief. The determining factor in joinder of parties is that a common question of fact or law would arise between the existing and the intended parties.” 39. The foregoing authority underscores the principle that joinder ought to be declined where the relief sought by the proposed party is inconsistent with, or wholly extraneous to the issues arising in the existing proceedings. In the present matter, the grievances advanced by the Proposed Interested Party do not arise from the Applicant's cause of action, and cannot properly be determined within the connes of these judicial review proceedings. 40. If the proposed Interested Party is aggrieved by the ndings or orders made in Narok CMCC No. 123 of 2006, the appropriate recourse lies in the appellate process or such other procedure as may be provided by law, and not by seeking joinder in these proceedings. 41. The sole issue before this Court is whether the Respondents should be compelled to implement and give eect to the subsisting Judgment and decree issued in Narok CMCC No. 123 of 2006. There is no relief sought herein that would confer upon this Court the jurisdiction to determine, validate, or otherwise regularize the Proposed Interested Party's alleged occupation or proprietorship of the suit property. Consequently, her participation would not aid the Court in the eectual and complete adjudication of the issues before it. 42. Accordingly, there is no administrative action being challenged as submitted by the Proposed interested party. Further, her involvement is not necessary for the 1st and 2nd Respondents to comply with the court orders. 43. On the contrary, the joinder of the proposed Interested Party would unnecessarily introduce collateral issues relating to ownership, occupation, and proprietary rights over the suit property, matters which fall outside the scope of these Judicial Review proceedings. Such joinder would only serve to complicate and delay the determination of the application, contrary to the Overriding Objective of facilitating the just, expeditious, proportionate, and aordable resolution of disputes. 44. Accordingly, the Court nds and holds that the proposed Interested Party has failed to demonstrate that her presence before this Court is necessary for the eectual and complete determination of the issues at hand. To put it simply, the proposed interested party has no valid stake in the present proceedings. Her rights and interests were conclusively determined in Narok CMCC No. 123 of 2006. Accordingly, she has not demonstrated that she has appealed against the said decision or expressed any interest to do so. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5443/eng@2026-09-17 6

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45. In any event, execution is a lawful process and does not amount to substantial loss. In the case of Frank Mbete Aluda & another (both trading as Frank Creative) v Carlvo Technology Co. Ltd [2017] eKLr, the court stated that: “ …………the allegation that the Respondent may proceed with execution is not a legal ground to constitute substantial loss. The Respondent is rightfully entitled to execute the decree and execution is a lawful process which the Respondent is entitled to.” 46. The court went further to quote the case of Timsales Limited Vs. Hiram Gichohi Mwangi, Civil Appeal Number 94 of 2008 (2013) eKLr, where it was held thus: “ The mere fact that the process of execution has commenced or is likely to commence does not amount to substantial loss for the reason that execution is a legal process and that the Appellant must establish other factors.” 47. Having found that the Proposed Interested Party is not a necessary party to these proceedings, it inevitably follows that her prayer for stay of execution of the judgment in Narok CMCC No. 123 of 2006, cannot stand. In the absence of a demonstrable legal interest in these proceedings, there exists no juridical basis upon which this Court can grant such relief. To do so would be tantamount to issuing orders in vacuum, a course that this Court cannot sanction. 48. The Proposed Interested Party’s proprietary rights over the suit property herein were conclusively litigated and extinguished vide Narok CMCC No. 123 of 2006. ii. Who Bears the Costs of this Application? 49. Section 27(1) of the Civil Procedure Act provides that the costs of any action, cause or other matter or issue shall follow the event unless the court shall for good reason otherwise order. Further, costs are awarded to the successful litigant, unless there are circumstances that would warrant the court to depart from the said principle. 50. The Proposed Interested Party’s Notice of Motion Application herein is found to lack merit, and thus the Applicant/Respondent is the successful; litigant. Based on the above provision of law, the court nds and holds that the Proposed Interested Party ought to bear the costs of the Application. 51. Consequently, the court holds and nds that the Proposed interested party’s application dated 21st May 2026, found not merited and is hereby dismissed entirely with costs to the Applicant/Respondent. It is so Ordered. DATED, SIGNED AND DELIVERED VIRTUALLY, AT NAROK THIS 17TH DAY OF SEPTEMBER 2026. L. GACHERU JUDGE Delivered online in the presence of: Elijah Meyoki Court Assistant Mr Kamau for the Applicant/Respondent Mr Migwe for the 1st Respondent for the 2nd Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5443/eng@2026-09-17 7

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No Appearance for the proposed interested party https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5443/eng@2026-09-17 8

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