Basaane Mohamud Osman & Another v Osman Mohamed Hassan & Others; County Government of Garissa (Proposed Interested Party)

5. The Plaintiffs commenced this suit on 4th October 2023 claiming lawful and beneficial ownership of L.R. No. 31332, situated north-east of Garissa Township. They complained that the Defendants had unlawfully entered upon the property and committed acts of trespass. 6. The Plaintiffs consequently sought, among other reliefs, a mandatory injunction restraining the Defendants, their agents or persons acting through them from degrading, trespassing upon or otherwise dealing with the property; a declaration that the Defendants had no proprietary interest in it; general damages for trespass; interest and costs. 7. Although served with the pleadings and summons to enter appearance, the Defendants did not participate in the proceedings. The suit therefore proceeded to formal proof on 24th May 2025, when the 1st Plaintiff testified as the sole witness. By then, the 1st Defendant had vacated the property and ceased the acts of trespass complained of. 8. On 26th June 2025, Mutungi J delivered judgment against the 2nd Defendant. The Court declared the Plaintiffs the lawful owners of the suit property and ordered the 2nd Defendant to vacate it within thirty days of service of the decree, failing which an eviction order would issue. The Plaintiffs were also awarded Kshs.100,000 as general damages for trespass together with costs. 9. The County Government of Garissa was not a party to the suit when it was heard and determined. On 3rd October 2025, it filed the present application seeking, among other orders, joinder as an interested party, setting aside of the judgment, reopening of the proceedings and an injunction restraining the Plaintiffs from occupying, interfering with, leasing, selling or settling upon L.R. No. 31332 (I.R. No. 257282). 10. When the application came before Mutungi J on 6th October 2025, the Court granted a temporary stay of execution of the judgment and directed the parties to maintain the status quo in respect of the suit property pending determination of the application. Those interim orders remain in force. 11. The application subsequently fell to this Court for determination. I now turn to the parties' respective cases. PART III –THE PARTIES’ CASES The Proposed Interested Party/Applicant’s Case 12. The Applicant’s case is that it has an interest in the suit property which was not brought to the attention of the Court before judgment was delivered. It contends that L.R. No. 31332 is unalienated public land that the County Government has used as a garbage dumpsite. On that basis, it challenges the Plaintiffs’ claim to the property and contends that it ought to be afforded an opportunity to place its case before the Court. 13. The Applicant therefore seeks to be joined as an interested party and, upon joinder, to have the judgment of 26th June 2025 set aside and the proceedings reopened. It seeks leave to put in a defence, cross-examine the parties and tender evidence. It also seeks an injunction restraining the Plaintiffs from occupying, interfering with, leasing, selling or settling upon the suit property. Page 2 of 7

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The Plaintiffs/Respondents’ Case 14. The Plaintiffs oppose the application. They contend that the Applicant has not demonstrated the requisite interest for joinder, particularly after the suit has proceeded to final judgment. They further argue that the allegation that the property is public land or a garbage dumpsite is unsupported by documentary evidence showing any proprietary interest of the County Government. 15. The Plaintiffs also oppose the prayer for setting aside and reopening the suit. Their position is that the judgment was regularly entered after hearing the suit and that the Applicant has not demonstrated fraud, mistake, procedural irregularity or want of jurisdiction sufficient to justify disturbing it. They similarly contend that the Applicant has not met the threshold for grant of an interlocutory injunction. 16. Finally, the Plaintiffs contend that the application is an abuse of the Court process and has unnecessarily drawn them back into litigation after judgment. They urge the Court to dismiss it with costs. PART IV – ISSUES FOR DETERMINATION 17. Having considered the application, the affidavits, the parties’ submissions and the record, I am of the view that the following two issues arise for determination: i) Whether the Proposed Interested Party/Applicant may be joined to the suit after delivery of judgment; and ii) Whether the Proposed Interested Party/Applicant is entitled to the reliefs sought. 18. I will consider the issues in that order, since the Applicant’s entitlement to pursue the substantive reliefs sought is necessarily connected to whether it may properly be admitted into these concluded proceedings. PART V – APPLICABLE LEGAL PRINCIPLES 19. Joinder of parties is governed by Order 1 Rule 10(2) of the Civil Procedure Rules, which empowers the Court, at any stage of the proceedings, to add a person whose presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. The power is discretionary and must be exercised according to the circumstances of each case. 20. The effect of the words “at any stage of the proceedings” was considered by the Court of Appeal in JMK v MWM & Another [2015] eKLR. The Court held that Order 1 Rule 10(2) ordinarily contemplates joinder while proceedings remain pending. Referring with approval to Tanga Gas Distributors Ltd v Said & Others [2014] EA 448, the Court observed that joinder may occur before or during trial and, in an appropriate case, even after judgment where something remains to be determined. Where, however, the suit has been finally disposed of, and nothing remains to be done, the rule ordinarily ceases to apply. 21. That principle does not impose an absolute prohibition against joinder merely because judgment has been delivered. In Chege & 2 Others v Ngundu Farmers CoPage 3 of 7

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operative Society Limited & 2 Others; Kimani (Interested Party) [2024] KEELC 3818 (KLR), the Environment and Land Court considered an application in which setting aside of the judgment was sought contemporaneously with joinder. The Court held that such an application was competent because, if the judgment were set aside, the proceedings would be reopened and the proposed interested party could then be joined. 22. It follows that where, as here, joinder is sought together with the setting aside of a judgment, the mere fact that judgment has been delivered does not by itself dispose of the application. The Court must consider whether the proposed interested party has demonstrated a sufficient basis for its admission into the proceedings and for disturbing the judgment. 23. The Supreme Court set out the applicable threshold for joinder as an interested party in Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR. The applicant must demonstrate a clearly identifiable and proximate interest in the matter; identify the prejudice likely to be suffered if joinder is refused; and set out the case or submissions it intends to make and their relevance to the proceedings. Joinder is not as of right but remains a matter of judicial discretion. 24. Of equal importance is the distinction between having an interest in the subject matter of litigation and having the requisite stake in the proceedings themselves. In Trusted Society of Human Rights Alliance v Mumo Matemo & 5 Others [2014] eKLR, the Supreme Court described an interested party as one who has a stake in the proceedings and may be affected by the Court's decision, but whose interest may not be adequately articulated unless permitted to participate. 25. The participation of an interested party is nevertheless circumscribed by the dispute presented by the principal parties. In Methodist Church in Kenya v Mohamed Fugicha & 3 Others [2019] eKLR, the Supreme Court emphasized that the issues for determination remain those arising from the principal parties' pleadings. An interested party cannot use joinder to introduce an independent cause of action or substantially alter the character of the proceedings. 26. Finally, the Court retains an inherent jurisdiction to prevent abuse of its process. In Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KLR 229, the Court of Appeal recognized that abuse of process may take various forms and that the Court must guard against use of its procedures in a manner inconsistent with the proper administration of justice. This principle is relevant where substantially the same relief is pursued through parallel proceedings, particularly where that course creates a risk of inconsistent decisions. 27. I now apply these principles to the circumstances of the present application. PART VI – ANALYSIS AND DETERMINATION Whether the Proposed Interested Party may be joined after judgment 28. It is not disputed that the Applicant was not a party to this suit when it was heard and determined. The judgment of 26th June 2025 finally determined the Plaintiffs’ claim Page 4 of 7

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against the Defendants, and no substantive issue remained pending for determination when the Applicant filed the present application. 29. That fact does not, by itself, dispose of the application. The Applicant has coupled its prayer for joinder with a prayer to set aside the judgment and reopen the proceedings. As recognized in Chege & 2 Others v Ngundu Farmers Co-operative Society Limited & 2 Others; Kimani (Interested Party) [2024] KEELC 3818 (KLR), the Court must therefore go beyond the fact that judgment has been delivered and consider whether the Applicant has established a sufficient basis for its admission into the proceedings. 30. The Applicant asserts that L.R. No. 31332 is unalienated public land which the County Government has used as a garbage dumpsite. Its concern with the judgment is therefore readily apparent, particularly because the Court declared the Plaintiffs the lawful owners of the property. The critical question, however, is not simply whether the Applicant claims an interest in the property, but whether that interest gives it the requisite stake in the proceedings which it now seeks to join. 31. The proceedings before the Court concerned trespass. The Plaintiffs alleged that the Defendants had unlawfully entered upon their property and sought relief against them. The judgment consequently determined the rights and liabilities arising from that cause of action and, in particular, ordered the 2nd Defendant to vacate the property and pay damages and costs. 32. The Applicant seeks to advance a materially different case. Its contention that the suit property is public land places in issue the proprietary rights asserted by the Plaintiffs themselves. Determination of that contention would therefore require the Court to adjudicate a dispute between the Applicant and the Plaintiffs which was not the cause of action presented for determination in the concluded suit. 33. In my view, that distinction is decisive. An interest in the subject property does not invariably translate into a sufficient interest for joinder in every proceeding concerning that property. The interest contemplated in Muruatetu must be sufficiently proximate to the dispute before the Court. Equally, as explained in Methodist Church in Kenya v Mohamed Fugicha & 3 Others, joinder cannot be used to introduce an independent cause of action into existing proceedings. 34. If the orders sought were granted, the Court would be required to set aside the judgment and rehear the Plaintiffs’ claim for trespass alongside a new controversy concerning ownership of the suit property introduced by the Applicant. At best, the application seeks to graft that new cause of action onto the Plaintiffs’ trespass claim; at worst, it would substitute the original cause of action with a new and superior claim to the property by the Applicant. Joinder of an interested party cannot properly serve either purpose. This accords with the central conclusion reached in the analysis placed before the Court. 35. The Applicant is, in any event, not without an avenue through which to ventilate its claim. It has already instituted Garissa ELCLC No. E015 of 2025, County Government of Garissa v Basaane Mohamud Osman (Sued on behalf of the Estate of Hassan Galbinoor – Deceased), Shukri Santur Iman & 3 Others, the other parties being the Land Registrar, the National Land Commission and the Ethics Page 5 of 7

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and Anti-Corruption Commission. Its claim to the suit property may therefore be pleaded and determined in proceedings in which it participates as a principal party. 36. This is also relevant to the question of prejudice under the Muruatetu test. Refusal of joinder does not shut the Applicant out of Court. Whatever interest it asserts in the suit property remains capable of determination in the separate suit it has already instituted. I am therefore not persuaded that the Applicant has demonstrated prejudice of the kind contemplated by the Supreme Court. 37. There is a further matter which cannot pass without comment. The Applicant has duplicated the present Notice of Motion in Garissa ELCLC No. E015 of 2025 and sought the same orders there. The concern is not merely that two suits relate to the same property. It is that substantially the same application and relief have been pursued in different proceedings. 38. Such a course raises legitimate concerns of abuse of process. As the Court of Appeal observed in Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] KLR 229, the Court must protect its process from being employed in a manner inconsistent with the orderly administration of justice. 39. Counsel in the present case appears to have set a double trap for the Court, hoping that if one fails, another will catch. Litigation is a vehicle for vindicating legitimate rights, not a sport for securing victory at all costs. Counsel are officers of the Court before they are advisers to their clients, and their professional duty to the Court remains even where it may conflict with a client's immediate interests. That is all I will say on the matter. 40. Considering the nature of the concluded proceedings, the independent character of the claim the Applicant seeks to advance, the absence of demonstrated prejudice if joinder is declined, and the separate suit already instituted to determine that claim, I find that the Applicant has not met the threshold for joinder as an interested party. Whether the Applicant is entitled to the reliefs sought 41. Having answered the first issue in the negative, the remaining prayers fall away. The substantive reliefs sought by the Applicant, including setting aside the judgment, reopening the proceedings, and the grant of injunctive orders, are predicated upon its participation in proceedings in which I have found that it has no proper stake. 42. In any event, even if joinder had been allowed, the Applicant's participation as an interested party would remain limited. As held in Muruatetu and Methodist Church in Kenya v Mohamed Fugicha & 3 Others, an interested party cannot introduce an independent cause of action or frame fresh issues for determination outside those arising from the principal parties' pleadings. The Applicant's claim that the property is public land is precisely such an independent controversy. 43. In the result, the Notice of Motion dated 3rd October 2025 is dismissed. For the avoidance of doubt, this determination does not pronounce upon the merits of the County Government's claim to L.R. No. 31332, which may be determined in the separate proceedings already instituted. Page 6 of 7

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44. On costs, it is trite law that costs follow the event unless there is good reason to order otherwise. The Plaintiffs, having been brought back to Court after judgment to resist an unsuccessful application, are entitled to their costs. I find no sufficient reason to depart from the ordinary rule. PART VII – DISPOSITION 45. In the result, I make the following orders: i) The Notice of Motion dated 3rd October 2025 is hereby dismissed. ii) The Proposed Interested Party/Applicant shall bear the Plaintiffs/Respondents’ costs of the application. iii) The temporary stay of execution and the order maintaining the status quo over L.R. No. 31332 (I.R. No. 257282), granted on 6th October 2025, together with any other subsisting interim orders arising from the application, are hereby discharged. iv) There being no further proceedings requiring determination in this suit, the file is hereby marked as closed. 46. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF SEPTEMBER 2026. DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Ms Masibo h/b for Duwane for the Proposed Interested Party/Applicant N/A for the Respondent Mr. Mohammed Dabar (Court Assistant) Page 7 of 7

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