Abdulahi Muirui Muigai & 5 Others v Attorney General & Another; Amboseli Court Ltd & 14 Others (Interested Parties)

SODUKU ESTATES LTD……………………… 3RD INTERESTED PARTY JOHN GAKUU GITHAE……………………… 4TH INTERESTED PARTY VISCOUNT HOLDINGS LTD………………… 5TH INTERESTED PARTY UMOJA ESTATES RESIDENTS ASSOCIATION……………………………….. 6TH INTERESTED PARTY U-HAUL VEHICLE HIRE LTD………………… 7TH INTERESTED PARTY NAIROBI BOTTLERS LTD…………………… 8TH INTERESTED PARTY EMCO BILLETS &STEEL……………………… 9TH INTERESTED PARTY STEEL STRUCTURES LTD…………………… 10TH INTERESTED PARTY FREESOAN CONSTRUCTION LTD………… 11TH INTERESTED PARTY CITY COUNCIL OF NAIROBI…………… 12TH INTERESTED PARTY KAMBA MANUFACTURING LTD………… 13TH INTERESTED PARTY DANDORA HOUSING SCHEMES LTD…… 14TH INTERESTED PARTY CO-OPERATIVE BANK ……… PROPOSED 15TH INTERESTED PARTY ELC PET 47 OF 2011 Page 2 of 13

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RULING 1. The court, by an application dated 30.7.2026, is asked to join the Cooperative Bank of Kenya as an interested party in this petition. The reasons are contained on the face of the application and in a supporting affidavit sworn by Stephanie Kioko on 30th July 2026. It is deposed that the intended party has advanced various financial facilities to the 9th interested party to the sum of KSh five billion over various subdivisions of the mother title secured by legal charges as well as debentures over assets of the 9 th interested party now subject ot orders of cancellation of titles in the petition before the court. The intended party says it will be prejudiced or affected regarding its proprietary and security interests by the outcome of this petition; hence, joinder is sought to present its position and defend its interests; otherwise, to shut it out will occasion grave injustice to its right to be heard under the Constitution regarding its legal rights and statutory mandate now under threat. 2. The intended party in its supporting affidavit relies on a letter dated 10th December 2012 regarding the terms of ELC PET 47 OF 2011 Page 3 of 13

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the overdraft, loan, letter of credit/bill guarantee/credit card, debenture dated 9th may1013,legal charge dated9th may 1013,further debenture dated1st august 2013,further charge dated 29th October 2014, and a copy of statement dated 24th July 2026 showing indebtedness as annexutes marked COO.1 2,and 3 respectively, 3. The application is opposed by the 1st ,2nd , 3rd,4th and 6th petitioners through grounds of opposition dated 14 th September 2026 4. A party seeking to join a constitutional petitioner as an interested party must demonstrate that he has an identifiable stake in the case, as was held in Trusted Society for Human Rights Alliance vs Mumo Matemu & Others (2015) EKLR. In this application, the applicant has sworn an affidavit to which it has attached a charge. 5. A charge is a statutory interest in land securing the payment of money or money's worth or the fulfilment of any condition as defined under section 2 of the Land Act. As such, it gives rise to a relationship where one person acquires a right over the land of another as security in exchange for money or money’s worth. ELC PET 47 OF 2011 Page 4 of 13

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6. The rights acquired are limited to the realisation of the security so advanced under section 80 of the Land Act. 7. Debentures, on the other hand, under section 888 of the Companies Act, if properly executed and registered, offer continuing security and are enforceable in law for future advances, as held in Standard Chartered Financial Services Limited v Manchester Outfitters (Suing Division ) Limited , now called King Woolen Mills Limited & 2 Others (2025) KESC 68 (KLR) , Supreme Court of Kenya, Petition E012 of 2024 Judgement delivered on 14th November,2025. 8. These are instruments that the intended party relies on to establish a stake in the subject property. A person seeking to join a suit must demonstrate personal interest in the matter by laying sufficient grounds, the prejudice to suffer for non-joinder and to demonstrate the relevance of his participation in the matter, as held in Francis Kioko Muruatetu & Another v. Republic & 5 Others (2016) EKLR. 9. The preliminary objection by the 1st, 2nd, 3rd & 5th petitioners is that the intended interested party is raising ELC PET 47 OF 2011 Page 5 of 13

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issues which do not fall within the jurisdiction of this court. To counter the objection the intended interested party submits that it is only seeking to join as an interested party and not a substantive party. 10. In Erdemann Property Limited vs Cooperative Bank of Kenya Limited; Lake Basin Development Authority (Intended Interested Party) ( Civil Case E271 of 2022) ( 2024) KEHC 10187 ( KLR), the court said that joinder of parties may be declined if the cause of action being proposed or reliefs sought are incompatible or totally different from the existing cause of action or relief. 11. Section 878 of the Companies Act requires registration of charges created by a company. Section 25 (1) of the Land Registration Act provides that the rights of a proprietor to property may be subject to overriding interests. There is no dispute that the intended party is a debenture holder and has a registered charge on the property belonging to the 9th interested party. The question is whether the applicant is a necessary party or its interests, rights, or otherwise make it a necessary party ELC PET 47 OF 2011 Page 6 of 13

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for effectual and complete determination of all issues in this matter. 12. Joinder of a party may be exercised at any stage of the proceedings so long as the suit has not been finalised, as was held in P.M.K VS M.W.K & Another ( 2015) EKLR. It is not disputed by the petitioners that there exist charges against some of the properties or their derivatives of the mother title in favour of the intended interest party. 13. In Judicial Service Commission VS Speaker of National Assembly & Another (Petition 518 of 2013) [2013] KEHC 1569 (KLR), the court defined a person with an identifiable stake or legal interest in the proceedings, hence may not be said to be wholly nonpartisan as he is likely to urge the court to decide favourably to his stake in the proceedings. 14. There is no evidence that the charge has been discharged or lifted. The charge is still binding on the charger, and therefore my finding is that the applicant has a valid legal interest which it is within its right to safeguard. ELC PET 47 OF 2011 Page 7 of 13

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15. As to prejudice to be suffered in case of non-joinder, the law is that a judgment or order in most cases does not only affect the litigants in the matter, but also may have ramifications for others. 16. In Skov Estate Limited & 5 Others v Agricultural Development Corporation & Another (2015)KEELC 624 (KLR); (2015) EKLR, the court said that the threshold for joinder of an interested party should not be too low or else it will open doors for busybodies as mere spectators to confuse the issues in the matter. The court said that joinder must be looked at within the context and surrounding circumstances of each particular case. 17. The 1st,2nd,3rd & 5th petitioners are of the view that this court lacks jurisdiction to handle matters relating to charges and mortgage. In Kampala International University vs HFCK SC petition No 34 of 2022 (2024) KESC 11 (KLR), the court restated the principle that a court of law is incapable of rendering any valid ruling, order or judgment if it lacks jurisdiction. 18. In Consolidated Bank of Kenya Limited vs Mukindia & Another (2026) KECA 1381 ( KLR ) 10th ELC PET 47 OF 2011 Page 8 of 13

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July 2026 (Judgement ) the court cited with approval Diamond Trust Bank of Kenya Limited Vs FHH (2022) KECA 169 (KLR), and Bank of Africa ( K) Limited & Another vs TSS Investment Limited & Others (2024) KECA 410 .that ELC only has jurisdiction to deal with disputes connected to “Use” of land and contracts incidental to the “use” of land, which do not include morgages, charges, collection of dues and rents which fall under the jurisdiction of the High Court. The court emphasised the principle that a charge is a disposition that has no direct contractual relation to “ use” of a chargor’s land. 19. In rejoinder, the intended interested party has submitted that it is only joining as an interested party but not a substantive party. The dominant issue in the stake profounded by the intended interested party is a contractual obligation held as a charge of the parties to this petition, and the parties are privy to the instrument of the legal charge which the intended interested party has displayed before this court. The intended interested party is not saying that the 9th interested party has defaulted in ELC PET 47 OF 2011 Page 9 of 13

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loan repayments, to attract exercise of a statutory power of sale. 20. In Cooperative Bank of Kenya Limited Vs Patrick Kangethe Njuguna & Another; Civil Appeal No. 83 of 2016, the intended interested party set the jurisdictional path and became a pacesetter to challenge the jurisdiction of this court at its very infancy, saying it has no business to deal with such disputes under section 13 of the ELC Act. In Bank of Africa of Kenya Limited & Another Vs TSS Investment Limited (2024) KECA 410 KLR, the court said that a charge has no direct contractual relation to the use of a chargor’s land. 21. The principle of stare decisis binds this court to the prevailing law that this court should not entertain charge/mortgage disputes. Jurisdiction is primordial in every suit. When a suit is filed in a court without jurisdiction, it is dead on arrival. A court’s jurisdiction cannot be conferred by consent or through judicial craftsmanship or draftsmanship, as held in Speaker of National Assembly & Another vs James Njenga ELC PET 47 OF 2011 Page 10 of 13

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Karume (1993) KLR, Civil Application No.92 of 1992 ( 1992) KECA 42 ( KLR) 22. Jurisdiction is everything; without it, a court downs its tools, as held in Owners of Motor Vessel Lillian ‘S 'vs Caltex Oil ( K) Limited ( 1989) KLR 1 (CA). 23. The intended interested party submits that the court should sustain it as an interested party notwithstanding the issue of jurisdiction. In Methodist Church in Kenya Vs Mohammed Fugiche & Others, Petition 16 of 2016, (2019) KESC 59 (KLR), Supreme Court, Judgement delivered on 23rd January 2019. the court held that the issues for determination in any case remain strictly those presented by the principal parties or those framed by the court from the pleadings and that an interested party cannot introduce fresh claims or a new cause of action. 24. In Raila Amollo Odinga & Another vs Independent Electoral and Boundaries Commission & 2 Others; Wafula ( interested Party), Presidential Electoral Petition No.1 OF 2017, [2017] KESC 41 (KLR) ruling delivered on 27th August 2017 (2017) ELC PET 47 OF 2011 Page 11 of 13

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EKLR, the court declined to allow the applicant a chance since he was introducing new facts or issues which were not helpful to the court as it resolved the issue. The court found no prejudice if the applicant’s intervention was denied. 25. In this matter, the court takes notice that he intended interest4ed party had filed a similar application and opted to withdraw it in the past. It has now resurfaced with a similar application, given the issue and legal interest it seeks to protect. 26. In this petition, as the issues are beyond the court's jurisdiction, it would be an act in futility. In view of the foregoing reasons, I find the intended interested party’s applications dated 30th July 2026 berefting of merit. It is dismissed with no order as to costs. 27. Orders accordingly. Dated, Signed and Delivered this 30th day of September,2026 at Nairobi. …………………….. HON.JUSTICE C.K. NZILI JUDGE ELC PET 47 OF 2011 Page 12 of 13

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In the presence of ; 1. Mr. C.K Kihara for 14th interested party 2. Mr.Kamau for the 1st respondent 3. Mr. Wachira for 6th interested party 4. Miss Kemunto for 12th interested party 5. Mr.Mbuthia for 2nd respondent 6. Mr. Wanyanga for 1st, 2nd , 3rd ,4th & 6th petitioners 7. Kienta for Ali Ahmed for 14th & 15th interested parties 8. Mr.Macharia for the 1st , 2nd , & 3rd interested parties 9. Mr. Omunga for 9th interested party 10. Mr. Murunga for the 1st ,2nd , 3rd ,4th & 6th petitioners 11. Mr. Were for 5th petitioner 12.Mr. Kithing for Odari for the intended interested party 13. Court Assistant – Julius ELC PET 47 OF 2011 Page 13 of 13

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