Kiunga v County Government of Meru & 2 others

ii. That the Honourable court be pleased to enjoin 1st and 2nd intended defendants as parties in this case. iii. That the Honourable court be pleased to issue and order of temporary injunction restraining the plainti whether by himself, his auctioneers, agents, servants or anyone else acting at his behest from evicting the intended defendants from land parcel number Meru Municipality/ block II/287 pending inter - parties hearing and determination of this application. iv. That the Honourable court be pleased to issue an order for the stay of execution of the judgment/decree and all consequential orders herein pending inter-partes hearing and determination of this application. v. That the Honourable court be pleased to set aside the judgment/decree delivered on 21.09.2017 by Hon. L N. Mbugua, certicate of cost and all the consequential orders herein and grant the intended defendants unconditional leave to defend the suit. vi. The Honourable court be pleased to issue an order of temporary injunction restraining the plainti whether by himself, his auctioneers, agents, servants or anyone acting at his behest from evicting the intended defendants from land parcel number Meru Municipality/Block II/287, pending the hearing and determination of the suit. vii. The Honourable court be pleased to issue an order for stay of execution of the judgment/decree and all consequential orders herein pending the hearing and determination of the suit. viii. The costs of this application be provided for. 3. The subject application is anchored on various grounds. The grounds are: The plainti led the subject suit as against the defendants; the defendants duly entered appearance and led a defence; the suit was heard and determined vide judgment delivered on the 21.09.2017; the court issued various orders inter alia, vacant possession and permanent injunction against the defendant [County Government of Meru]; the applicants herein were not parties to the suit; however, the plainti has now commenced the process of evicting the applicants; the plainti has issued and served an eviction notice; the eviction notice was served on the 28.07.2026; the notice is illegal; and the intended eviction shall aect the rights of the applicants. 4. Additionally, the applicants have posited thus: The suit property has been under their occupation and possession since the year 2000; the members of the applicants have been carrying out business on the suit property; the occupation and use of the suit property has been open; the applicants have acquired/accrued adverse possessory rights; the applicants’ rights to the suit property will be aected; the applicants’ will be condemned unheard; the applicants desire to be heard; the applicants seek the protection of the court. 5. Furthermore, it has been averred thus: The applicants’ rights cannot be vindicated without joinder; the applicants have established sucient basis to warrant joinder; the joinder of the applicants shall enable the court to eectively determine the issues in controversy; and the applicants’ have met the threshold for the grant of the orders of temporary injunction; and similarly, the Applicants’ have met the threshold for the Order of stay of execution of the impugned judgment /decree. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 2

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6. The subject application is supported by the adavit sworn by one Damaris Kathure. The adavit is sworn on the 31.07.2026. The deponent of the supporting adavit has reiterated the grounds contained in the body of the application. In addition, the deponent has annexed assorted documents, including: copy of certicate of registration of Soko Mjinga Community Based organization, Soko Tumaini Self Help Group; Minutes; and assorted photographs. 7. Premised on the foregoing, the applicants’ have posited that same have established their rights and interests over the suit property, and which rights, the applicants seek to canvass before the court. To this end, the applicants have posited that same are indeed necessary parties and thus deserving to be joined into the suit as defendants. 8. The plainti/respondent led a replying adavit sworn on the 13.08.2026. The deponent of the replying adavit has averred thus: The suit property, lawfully belongs to the plainti; the defendant had sought to allocate the suit property to hawkers; the plainti sought and obtained an injunction; the suit against the defendant was heard and determined; judgment was delivered on the 21.09.2017; the court decreed that the suit property belongs to the plainti; the plainti is entitled to exclusive possession and occupation; and the applicants have no rights over the suit property. 9. In addition, the deponent of the replying adavit has posited thus: The applicants’ claim on the basis of adverse possession is premature; the applicants’ certicates of registration indicate 2019 and 2023; that the applicants’ have never been in existence for 12 years; the applicants cannot lay a claim on the basis of adverse possession; and the applicants have not met the threshold to warrant joinder. 10. The instant application come up for hearing today [18.09.2026], when the advocates for the parties intimated to the court that same are ready to proceed. Furthermore, the advocates agreed to canvass the application by way of oral submissions. To this end, the court issued directions. Suce it to state that the application proceeded for hearing vide oral submissions. 11. Learned counsel for the applicants [intended defendants] adopted the grounds at the foot of the application; reiterated the contents of the supporting adavit; and thereafter, highlighted ve key issues. The issues are: The applicants have established a basis for joinder in terms of Order 1 Rule 10 [2] of the Civil Procedure Rules; the Applicants have accrued adverse possessory rights over the suit property; the eviction notice which was served against the applicants is invalid; the applicants shall be disposed to suer irreparable/substantial loss; and the applicants’ have a right to be heard in accordance with the provisions of Article 50 of the Constitution. 12. To buttress the forgoing submissions, learned counsel for the applicants has cited and referenced the decision in the case of Pravin Bowry versus John Ward and another [2015] eKLR and Mary Beach Limited versus Attorney General and 18 others. [2018] KECA. 13. Based on the foregoing, learned counsel has contended that the court ought to exercise its discretion to allow the application and direct joinder of the applicants. Moreover, the court has been invited to set aside the impugned judgment and to issue an order of temporary injunction. 14. Learned counsel for the plainti adopted the contents of the replying adavit and thereafter highlighted six key issues. The issues are: The applicants have not demonstrated a prima facie case of adverse possession; the applicants’ have not been in existence for 12 years; the photographs annexed by the applicants have no probative value; the applicants have no rights over the suit property; and no basis has been established to warrant the grant of the orders sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 3

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15. Learned counsel for the plainti has contended that the setting aside of the judgment, which was issued approximately 10 years ago, shall prejudice the rights and interests of the plainti. The court has been implored to dismiss the application and to award costs to the plainti. 16. Having reviewed the notice of motion application; the supporting adavit thereto; the replying adavit sworn in opposition; and upon taking into account the oral submissions canvassed by/on behalf of the parties, three [3] key issues emerge for determination. 17. The issues are: Whether the applicants have met the threshold [if at all] for joinder in terms of Order 1 Rule 10 [2] of the Civil Procedure Rules, 2010; whether the applicants have established a basis for the grant of an order of temporary injunction; and whether the applicants have met the threshold for an order of stay of the impugned judgment and the consequential decree or otherwise. 18. Regarding the rst issue, namely; whether the applicants’ have met the threshold for joinder, it is important to highlight that the court is vested with discretion to join any party into the suit, whether as a defendant; interested party; necessary party; or third party, whichever is the case. However, it is incumbent upon the applicant to demonstrate and establish the stake or interest, if any, that underpins the desire for joinder. 19. Put dierently, a court of law cannot exercise discretion for joinder of a party, unless the party seeking joinder, has demonstrated a stake hold in the matter in question. It must also be shown that the party seeking joinder or the proposed joinder, shall enable the court to eectively and eectually determine the issues in controversy. I dare add that joinder of a party, in whatever capacity, ought not to be granted for the mere asking. Simply put, joinder of a party is not a cosmetic exercise. 20. In the case of Pravin Bowry v John Ward & another [2015] KECA 215 (KLR), the Court of Appeal addressed the guidelines/parameters that govern the exercise of discretion by the court when dealing with an application for joinder. 21. The court stated thus: “ The exercise of this jurisdiction is pegged upon the discretion of the court in making a determination as to whether the party sought to be added will facilitate the eectual and complete settlement of all the questions in the suit. This Court sitting at Mombasa in Civicon Limited v. Kivuwatt Limited & 2 others [2015] eKLR (Civil Appeal No. 45 of 2014) identied that the provisions of Order I of the Civil Procedure Rules call for the exercise of discretion and had this to say of the same: “ Again the power given under the Rules is discretionary which discretion must of necessity 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 4

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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.” The issue was also the subject of consideration by this Court in Meme v. Republic [2004] KLR 637 where it was held that joinder of parties will be permissible: “ (i) Where the presence of the party will result in the complete settlement of all the questions involved in the proceedings; (ii) Where the joinder will provide protection for the rights of a party who would otherwise be adversely aected in law: and (iii) Where the joinder will prevent a likely course of proliferated litigation.” 22. Have the applicants met the threshold? The applicants’ case is to the eect that same have been in occupation/possession of the suit property since the year 2000. In particular, the applicants have contended that their members, have been carrying on assorted businesses on the suit property since the year 2000. To this end, the applicants have asserted that on the basis of their occupation/possession of the suit property, same have acquired adverse possessory rights thereto. 23. Furthermore, the applicants have posited that if the threatened action by and on behalf of the plainti are allowed to proceed, then the applicants rights that have since accrued [adverse possessory rights] shall be aected, albeit without having been heard. In this regard, it has been contended by the applicants, that same shall be exposed to condemnation without having been heard. 24. The applicants have annexed three key documents in an endeavor to demonstrate their occupation to the suit property. The applicants’ have annexed: a copy of the certicate of registration of Soko Mjinga Community Based Organization [CBO]; copy of certicate of registration of Soko Tumaini Self Help Group; and copies of photographs showing occupation/assorted merchandise. 25. On the basis of the said annextures, the applicants posit that same have established a prima facie case of adverse possession, over and in respect of the suit property, so as to warrant joinder. I beg to state that if the applicants were able to demonstrate some semblance of a case of adverse possession, then same, would no doubt be entitled to joinder and liberty to defend the suit. 26. However, I have examined the annextures and I am afraid, that same do not establish even a semblance of a claim for adverse possession. There is no prima facie case. To start with, the applicants have approached the court in their “corporate umbrella”. It is in this regard, that the applicants state/ posit that same or better still, their members, have been in occupation of the suit property since the year 2000. However, there is no gainsaying that the 1st applicant was registered in the year 2019, while the 2nd applicant was registered in the year 2023. 27. The question that does arise is how the applicants [which are a community-based organization and a self-help group] could have commenced occupation of the suit property, long before same were conceived and registered. To my mind, the contention that the applicants commenced occupation of the suit property in the year 2000, is clearly untenable. 28. Moreover, the applicants have also annexed assorted photographs. The purport of the photographs is to show the court that same [applicants] have been carrying out business on the suit property. However, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 5

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it is evident that the photographs have not been accompanied with the requisite electronic certicate. In the absence of the electronic certicate, the photographs are devoid of probative value. 29. In the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR), the court of appeal highlighted the importance of the electronic certicate. The court stated thus: “ Section 106 B of the Evidence Act states that electronic evidence of a computer recording or output is admissible in evidence as an original document “if the conditions mentioned in this section are satised in relation to the information and computer.” In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B(2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced. For ease of reference, we wish to reproduce Section 106B of the Evidence Act in its entirety: “ 65. “ 106B (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied on optical or electro-magnetic media produced by a computer (herein referred to as computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satised in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein where direct evidence would be admissible. (2) The conditions mentioned in subsection (1), in respect of a computer output, are the following— (a) the computer output containing the information was produced by the computer during the period over which the computer was used to store or process information for any activities regularly carried out over that period by a person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in electronic record or of the kind from which the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 6

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information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (3) (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to aect the electronic record or the accuracy of its content; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in paragraph (a) of sub section (2) was regularly performed by computers, whether— (a) by combination of computers operating in succession over that period; or (b) by dierent computers operating in succession over that period; or (c) in any manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, then all computers used for that purpose during that period shall be treated for the purposes of this section to constitute a single computer and references in this sections to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certicate doing any of the following— (a) identifying the electronic record containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 7

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electronic record was produced by a computer; (c) dealing with any matters to which conditions mentioned in sub-section (2) relate; and (d) purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate), shall be evidence of any matter stated in the certicate and for the purpose of this subsection it shall be sucient for a matter to be stated to be the best of the knowledge of the person stating it. (5) For the purpose of this section, information is supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of an appropriate equipment whether in the course of activities carried on by any ocial, information is supplied with a view to its being stored or processed for the purpose of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.” 6 In relation to this case, the relevant conditions in that section are (a) if the computer output was recorded by a person having lawful control over the computer used (b) if the output was recorded in the ordinary course of that person’s activities using a computer or some other electronic devise and fed into a computer that was properly operating throughout the material period; and (c) if that person gives a certicate that to the best of his knowledge, the output is an electronic record of the information it contains https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 8

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and describes the manner in which it was produced. 30. In the absence of the requisite electronic certicate, I am unable to reference and rely on the impugned photographs, in endeavor to ascertain prima facie occupation/possession. Absent prima facie evidence of occupation, the claim of adverse possession, which founds the basis for joinder dissipates. 31. Other than the foregoing, and assuming that the applicants, have been undertaking business on the suit property, in the manner asserted, one would have expected the applicants or their members to exhibit receipts from the County Government which are ordinarily issued to hawkers or small-scale traders. None has been annexed. 32. I have not been persuaded that the applicants have a basis to warrant joinder. I remind myself of the legal position that discretion is not be exercised on the basis of empathy or sympathy. On the contrary, discretion of the court is to be exercised on the evidence tendered and sound principles. None has been established. 33. I now wish to turn to the second issue. The second issue relates to whether the applicants have met the threshold for the grant of an order of temporary injunction. It is common ground that whosoever seeks to obtain an order of temporary injunction, the applicants not excepted, must demonstrate the conditions that were highlighted in the case of Giella versus Cassman Brown Limited [1973] EA 353. The said conditions were rearmed in the case of Nguruman Limited versus Jan Bonde Nielsen and another [2014] eKLR. 34. The conditions that must be met, before an order of temporary injunction can issue are: Proof of prima facie case; proof of likelihood of irreparable loss; and balance of convenience. Moreover, it is important to underscore that, the conditions for an order of injunction must be met sequentially. This means that the applicants must surmount the hurdle of prima facie case, before engaging with the irreparable loss. [see Kenya Commercial Finance Co. ... Ltd vs Afraha Education Society [2001] 1 EA 86;] 35. The question that falls for determination is whether the applicants herein have satised the conditions? 36. It suces to state that the claimant seeking an order of temporary injunction, must have led a suit, whether by plaint; petition; originating summons or otherwise. The point is, there must be a suit, wherefrom the court can assess the existence of arguable issues. In respect of the instant matter, the applicants have no suit. In addition, the applicants are not parties yet. They are seeking joinder; and even though same have not been joined yet, same want to partake of precipitate orders. To my mind, such orders belong to the parties, or those who have been joined. Not otherwise. 37. Though the applicants have invoked Order 40 Rule 1 of the Civil Procedure Rules, 2010, I am afraid that same have not met the prescription of the said order. 38. The order state thus: Cases in which temporary injunction may be granted [Order 40, rule 1] 1. Where in any suit it is proved by adavit or otherwise—(a)that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or(b)that the defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 9

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in the suit,the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders.” 39. Be that as it may, even assuming that the applicants could seek for an order of temporary injunction without having a suit, which in my humble is pre-mature, the issue remains that the applicants’ sole claim of adverse possession, is ex facie untenable. 40. Additionally, I beg to highlight that insofar as the applicants have not been joined as parties to subject suit, the applicants cannot seek to partake of precipitate orders, before joinder. To my mind, the limb of the application seeking orders of temporary injunction, before joinder, is tantamount to placing the ‘cart before the horse’. Such an endeavor is unorthodox. 41. I think that I have said enough to demonstrate that the plea/claim for an order of temporary injunction, has been made in vacuum. 42. Next is the issue of an order of stay of execution. Learned counsel for the applicants submitted that the applicants have established the elements to warrant the grant of the orders of stay. In particular, learned counsel posited that the applicants have proven substantial loss. Nevertheless, there is no gainsaying that an application under Order 42 Rule 6 of the Civil, Procedure Rules [which was invoked by the applicants] presupposes the existence of an appeal. 43. In respect of the instant matter, there is no appeal that has been led by the applicants. In my humble view, the application seeking stay of execution [sic] under Order 42 of the Civil Procedure Rules, 2010 is still-borne. The said provisions can only be invoked where there is an appeal, or better still, a Notice of appeal in terms of Order 42 Rule 6 [4] thereof. 44. I do not wish to belabor the point. There is clearly no basis for me to interrogate whether the applicants have met /satised the threshold under Order 42, Rule 6 [1] and [2] of the Civil Procedure Rules, 2010. Conclusion: 45. It was incumbent upon the applicant to place before the court some material or evidence, to enable the court to assess the nature of interests; rights; or claims, that would necessitate joinder. The evidence/ material, must be ex facie plausible. It must not be just some heap of papers. 46. The applicants did not meet the threshold. Suce to underscore that the discretion of the court can only be exercised in favor of a deserving party. It cannot be exercised merely because someone came to court and asked for it. It is not issued as a matter of right or cause. Furthermore, It is not an entitlement of a Party. 47. Pertinently, the application beforehand is bereft of merits. Final orders: 48. In the upshot, the nal orders that commend themselves to the court are: i. The Application dated 31.07.2026 be and is hereby dismissed. ii. Costs of the Application be and are hereby awarded to the Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 10

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iii. 49. The costs in terms of clause [ii] above shall be agreed upon and in default be taxed in the conventional manner. It so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 18TH DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. In the presence of: Court Assistant: Zakayo . Mr. Nyokabi for the Applicants/Intended Defendants Mr. Mwirigi Kaburu for the Plainti/Respondents N/a for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5648/eng@2026-09-18 11

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