Timothy Irimu Kagambi & 21 others v Nancy Wanja Gatabaki & Nairobi City County (Intended Interested Party)

RICHARD MUNDIA KARIUKI …. 8TH PLAINTIFF /RESPONDENT FREDRICK MWANGI MUCHOKI.9TH PLAINTIFF /RESPONDENT CHARLES MATHAI MATU …….. 10TH PLAINTIFF /RESPONDENT MONIQUE WANGUI MATU ….…. 11TH PLAINTIFF/RESPONDENT MARY WAIRIMU MURIUKI ….. 12TH PLAINTIFF /RESPONDENT JOSEPH MUCHINA MURIUKI .. 13TH PLAINTIFF /RESPONDENT JOHN GACHANGA KAIGANAINE ..14TH PLAINTIFF/RESPONDENT JOSEPH KIMANI KARANJA …... 15TH PLAINTIFF/RESPONDENT GEORGE NJOROGE KIHANYA..16TH PLAINTIFF /RESPONDENT ELC SUIT NO. E012 OF 2022 (O.S) Page 2 of 21 Ruling

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ROBERT KAMAU KIHANYA .…. 17TH PLAINTIFF/ RESPONDENT DOROTHY WANJIKU GUCHU…18TH PLAINTIFF /RESPONDENT NGARI KARIITHI …………………. 19TH PLAINTIFF /RESPONDENT RACHEL NGARI …………………... 20TH PLAINTIFF /RESPONDENT ALICE MERCY NJERI KINYANJUI Suing as an Administrator and Personal Representative of the Estate of JOHNSON JOSHUA KINYANJUI (DECEASED) ……. 21ST APPLICANT/RESPONDENT ABBIMAC ENTERPRISES COMPANY LIMITED ………….... 22ND APPLICANT/RESPONDENT VERSUS NANCY WANJA GATABAKI ... DEFENDANT/23RD RESPONDENT NAIROBI CITY ELC SUIT NO. E012 OF 2022 (O.S) Page 3 of 21 Ruling

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COUNTY …….…… INTENDED INTERESTED PARTY/APPLICANT RULING 1. What is before the Court for determination is the Applicant’s Notice of Motion dated 11th November 2025 in which it seeks the following Orders: a) Spent. b) That this Honorable court be pleased to enjoin the Applicant as an Interested Party in the suit. c) Spent. d) Spent. e) That this court be pleased to review, vacate and /or set aside its judgement delivered on 14 th October 2025 as well as consequential orders. f) That consequent to grant of prayer (e) above, this Honorable Court be pleased to re-open this matter and direct that the suit be heard afresh on merit. ELC SUIT NO. E012 OF 2022 (O.S) Page 4 of 21 Ruling

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g) That the cost of this application be borne by the Respondents. 2. The application is premised on grounds on its face and on the supporting affidavit sworn by Geofrey Cheruiyot, the Applicant’s Chief Officer, Lands. He avers that vide this Court’s judgement in the suit delivered on 14 th October 2025, this Court ordered the Defendant (Nancy Wanja Gatabaki), to deliver to the Plaintiffs duly executed transfer documents pertaining; LR No. 28223/39, LR No. 28223/41, LR No. 28223/50, LR No. 28223/51, LR No. 28223/54, LR No. 28223/55, LR No. 28223/57, LR No. 28223/58, LR No. 28223/59, and LR No. 28223/61, failing which the Deputy Registrar, Environment and Land Court was directed to execute the said transfer instruments. 3. He claims that the said parcels consist of land belonging to the Applicant, held in trust for the public therefore they are incapable of being transferred to private entities, adding that the Defendant (Nancy Wanja Gatabaki), in bad faith, failed to ELC SUIT NO. E012 OF 2022 (O.S) Page 5 of 21 Ruling

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join/notify the Applicant of the suit, yet she knew it has vested interest on behalf of the public. 4. He explains that LR 5980 initially measured (200) acres and LR 4508/1 (6) acres thus the entire acreage was (206) acres. Further, that sometime in 1979, the Applicant’s predecessor’s gave conditional approval for subdivision of LR No. 5980 into three (3) subplots and a road reserve, being that the area reserved for public purpose be surrendered to the government for public use. To that end, upon subdivision, 10% of the whole (206) acres of the aforementioned parcels was surrendered for public utility purposes. 5. He points out that LR No. 5980 was subdivided into LR No. 5980/1 (7.34 Ha), LR No. 5980/2 (5.680 Ha), LR No. 5980/3 (43.64 ha), and LR No. 5980/4(24.28 ha) and that it is LR No.5980/1(7.34 Ha), that was surrendered to the government for public 5980/1(7.34 Ha), was ELC SUIT NO. E012 OF 2022 (O.S) Page 6 of 21 use. Further, that LR No. fraudulently amalgamated with Ruling

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private land, being LR No. 5980/3 and LR No. 4508/1 resulting into thirty three (33) subplots being LR No. 28223 (road reserve to LR No. 28223/32) and to nip the fraud, the National Land Commission vide a letter dated 16 th October 2017, informed the Defendant, her late husband and other private entities of the said illegal amalgamation and requested the Chief Land Registrar to place a restriction on LR No. 28223 to prevent any dealings on the land but this Court’s judgement has exposed it, to risk of removal and alienation. 6. He explains that on 11th April 2023, the Director of Survey wrote to the Chief Land Registrar advising that it was in the process of cancelling all survey records pertaining LR 28223. He points out that there is also an ongoing suit touching on the subject land, being ELC Petition 44 of 2018, Nancy Gatabaki v The Attorney General & 9 others where the Defendant herein is seeking compensation for alleged compulsory acquisition of LR 5890. Further, that ELC SUIT NO. E012 OF 2022 (O.S) Page 7 of 21 Ruling

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in Nairobi ELC E176 of 2023, she swore under oath that the amalgamation to create LR No. 28223 and the resultant subdivision was irregular. He annexed copies of the referenced Petition and affidavit and contends that should the transfers ordered by the Court be effected, public land will be alienated contrary to public interest. Responses 7. The Plaintiffs/Respondents filed Grounds of Opposition in response. They contend that Order 1 Rule 10 (2) of the Civil Procedure Rules contemplates joinder during the pendency of a suit thus judgement having been entered herein, the suit is closed and joinder is not permissible. 8. The Defendant did not file a response. 9. The application was canvassed by way of submissions. Submissions ELC SUIT NO. E012 OF 2022 (O.S) Page 8 of 21 Ruling written

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10. The Applicant submits that Order 1 Rule 10 (2) of the Civil Procedure Rules vests this Court with wide discretion to join parties necessary for effective and complete adjudication of a matter and that being a custodian of public land under Article 62(2) of the Constitution, it has a direct identifiable stake in the matter to warrant joinder. It urges the Court to invoke Article 159 of the Constitution to look beyond procedural technicalities raised by the Respondents and issue substantive justice considering that it was not notified of the suit thus it was excluded from proceedings thereby violating its right to hearing. 11. It also submits that it does not dispute the general rule in the case of Mwaura & 2 Others v Elesondai & 4 Others [2025] KEELC 8571 (KLR) (relied on by the Respondents), to the extent that it restates the general rule against post- judgment joinder after a matter has been completely disposed of. However, it contends that the instant application is not an ordinary joinder application, but it seeks a review, ELC SUIT NO. E012 OF 2022 (O.S) Page 9 of 21 Ruling

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stay, and setting aside of judgement. It argues that it has invoked this Court’s review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, which permits any person aggrieved by a decision to apply for review and does not confine the review only to persons who were parties to the original proceeding. 12.It also submits that in Alton Homes Limited & another v Davis Nathan Chelogoi & 5 others [2020] eKLR, the Court of Appeal drew a distinction with the general rule in JMK v MWM & Another [2015] eKLR (also relied on by the Respondents) to submit that post judgment joinder is not acceptable, holding that where an Applicant does not seek bare joinder but also applies for review, setting aside, and a de novo hearing, the Court retains jurisdiction notwithstanding that judgment has been delivered. 13.On whether it has satisfied the threshold for review and setting aside of the impugned judgment, it submits that it has attached new evidence that is important, as it proves the suit ELC SUIT NO. E012 OF 2022 (O.S) Page 10 of 21 Ruling

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parcels’ public nature, rendering transfers ordered by the Court unconstitutional under Article 62(4) of the Constitution. Further, that it could not have adduced the said evidence while excluded. It reiterates that the said evidence demonstrates fraud that vitiates everything, as per Section 26 of the Land Registration Act, which nullifies titles obtained through misrepresentation. It also submits that it has demonstrated an error apparent on the face of the record, being the classification of unalienated government land as private. 14. On stay, it submits it has satisfied the criteria for grant of stay as stated in the case of Butt v Rent Restriction Tribunal [1982] KLR 417, as it raises substantive questions of law and fact, including the constitutional status of the suit properties and the effect of the National Land Commission’s restriction over the said properties. Further, if the Judgment is executed and the suit properties are transferred, the application ELC SUIT NO. E012 OF 2022 (O.S) Page 11 of 21 will be rendered Ruling entirely

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nugatory. It also argues that the loss of public utility land is irreversible and that the public interest in preventing the unconstitutional alienation of public land outweighs the Respondents' interest in executing the Judgment at this stage, adding that the Respondents will not suffer irreparable harm as they retain the equitable interest they possess. 15. To buttress its averments, the Applicant relied on the following decisions: Mumo Matemu & 5 others v Trusted Society of Human Rights Alliance [2015] eKLR, Gatabaki & another v Attorney General & 8 others; Equity Bank Kenya Limited (Intended Respondent) [2025] KEELC 104 (KLR), and Alvin Mbae & 2 others v Edwin Nyaga Mukatha & 2 others [2022] KEELC 1302 (KLR). 16. On their part, the Plaintiffs/Respondents submit that the Applicant cannot be joined in proceedings that have been closed, judgment having been delivered. To this end, they ELC SUIT NO. E012 OF 2022 (O.S) Page 12 of 21 Ruling

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relied on the case of Mwaura & 2 Others v Elesondai & 4 Others [2025] KEELC 8571 (KLR) and JMK v MWM & Another [2015] eKLR. Analysis and Determination 17. Upon consideration of the instant Notice of Motion application including the supporting affidavit, Grounds of Opposition as well as rivalling submissions, the following are the issues for determination: a) Whether the Applicant can properly be joined as an Interested Party after judgment has been delivered. b) Whether the Applicant has satisfied the threshold for review, vacation and/or setting aside of the judgment delivered on 14th October 2025. c) Whether the Applicant has established sufficient grounds for stay of execution of the judgment delivered on 14th October 2025. ELC SUIT NO. E012 OF 2022 (O.S) Page 13 of 21 Ruling

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18. The Court entered judgement in this matter on 14 th October 2025 and ordered the Defendant (Nancy Wanja Gatabaki), to deliver to the Plaintiffs, duly executed transfer documents pertaining to the properties listed at paragraph (2) herein failure to which the Deputy Registrar of this Court was directed to execute the same. 19. The proposed Interested Party seeks joinder on the basis that the aforementioned parcels fall on public land and that it was not notified of the suit thus judgement was reached without according it a hearing. It also seeks a review and setting aside of the said Orders and contends that it has a stake in the matter as it holds the suit parcels in trust for the public. 20. On their part, the Respondents contend that there are no proceedings for the Applicant to be joined to, judgement having been entered and the matter closed. 21. Order 1 Rule 10(2) of the Civil Procedure Rules gives this Court power, to join a party at any stage of proceedings, ELC SUIT NO. E012 OF 2022 (O.S) Page 14 of 21 Ruling

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whose presence may be necessary to enable it to effectually and completely adjudicate upon and settle all questions in a suit. The Plaintiffs/Respondents argued that while Order 1 Rule 10 (2) permits joinder, it presupposes it to be done during the pendency of proceedings but not post judgement. 22. On its part, the Applicant contends that it does not seek joinder in isolation as it also invokes Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, seeking review, and setting aside of the said judgment as well as stay of execution. 23. On the first issue, the Court will distinguish post-judgment joinder for purposes of participating in concluded proceedings and an application by a person directly affected by a judgment seeking to invoke the Court's review jurisdiction. 24.At this juncture, it is worthnoting that the Applicant seeks joinder as an Interested Party. The Court has to first ELC SUIT NO. E012 OF 2022 (O.S) Page 15 of 21 Ruling

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determine the role of an Interested Party before it can deal with the issue of joinder. On role of an Interested Party, the Supreme Court stated in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR, that: “an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. 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…” 25. On perusal of the pleadings and proceedings herein including the impugned judgement, I note it touches on several parcels of land which the Respondents/Decree holders’ claim proprietary rights over. The Applicant claims there is a portion of the suit properties which encompasses public land and it has a stake over it. Further, that the Defendant failed to divulge to this Court that they were engaged in active litigation in other suits together with the proposed Interested ELC SUIT NO. E012 OF 2022 (O.S) Page 16 of 21 Ruling

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Party over the said public land. I note the Plaintiffs’ Respondents main argument is that this Court cannot allow joinder post judgement. 26. In Everton Coal Enterprises Limited v Karanja & 5 others (Application E026 of 2023) [2023] KESC 98 (KLR) (10 November 2023) (Ruling), the Supreme Court while dealing with the issue of joinder post judgement, held that: “Strictly speaking, though joined, the applicant was not a party to “the proceedings” in the Court of Appeal having been joined post-judgment, yet a joinder contemplates a situation where proceedings are still pending before the court and in terms of rule 5(d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) which is in pari materia with order 1 rule 10(2) of the Civil Procedure Rules, a party will only be added to on-going proceedings in order to enable the court adjudicate fully upon and settle all the questions involved in the ELC SUIT NO. E012 OF 2022 (O.S) Page 17 of 21 Ruling

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particular proceedings before it. 26. Noting that the original dispute between the 1 st to 4th respondents and the 5th and 6th respondents having been settled in a judgment rendered on July 29, 2016, there were no proceedings to which the applicant could properly join four years later on June 5, 2020, when the ruling by the first bench of the Court of Appeal was rendered. This question has been settled in a long thread of past decisions. For example, in JMK v MWM & another [2015] eKLR, the court stressed that; “…an application for joinder of parties can be filed only in pending proceedings; that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings, either before, or during the trial; and that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable”. See also the Court of Appeal judgment in Kenya Airport Authority v Mitu- Bell Welfare Society & 2 others [2016] eKLR on the finality of a judgment as a decision of a court resolving all the contested issues and settling the rights and liabilities of the parties before it and our decision in University of ELC SUIT NO. E012 OF 2022 (O.S) Page 18 of 21 Ruling

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Eldoret & another v Hosea Sitienei & 3 others, SC Application No 8 of 2020; [2020] eKLR emphasizing the finality of the litigation process. Similarly, this Court has pronounced itself in the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others, [2014] eKLR, relying on Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR on the place of an interested party in any proceedings.’’ Emphasis mine 27. Based on the facts as presented while relying on the Supreme Court decision that is binding on this Court, I find that since the proposed Interested Party did not participate in the proceedings culminating in the impugned judgement sought to be set aside, even if it has a stake in the matter, noting that there are already pending proceedings in respect to the disputed land, it has come too late in the day. I opine that it should advance the arguments raised herein in the pending proceedings or await for the outcome of the aforementioned cases. Further, it is trite that a party can only be joined to on-going proceedings to enable the Court ELC SUIT NO. E012 OF 2022 (O.S) Page 19 of 21 Ruling

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adjudicate fully upon and settle all the questions involved in proceedings before it, which is not the position herein. 28. In the foregoing, I am unable to join it in these proceedings. Further, since I have declined to join the proposed Interested Party herein, I will not deal with the issue of setting aside the impugned judgement nor stay of execution. 29.In the foregoing, I find the instant Notice of Motion application unmerited and will disallow it but make no order as to costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Gichigo for Applicants/Respondents Kiprotich for Intended Interested Party Applicant Muturi Njoroge for Respondent Court Assistant: Joan ELC SUIT NO. E012 OF 2022 (O.S) Page 20 of 21 Ruling

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ELC SUIT NO. E012 OF 2022 (O.S) Page 21 of 21 Ruling

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