Mwinyi Hamisi Mwachijombwe & 2 others v Hamisi Suleiman Mwachijombwe & 4 others; Clinton Monda Benga (Interested Party/Applicant); Saeta & Company Advocates (Intended Interested Party)

(i) THAT this application be certified as urgent and that service of the same be dispensed with at the first instance. (ii) THAT the Honourable Court be pleased to grant leave to join the firm of Saeta & Company Advocates as an interested party in these proceedings pending the inter partes hearing and determination of this application. (iii) THAT upon the grant of prayer 2 above, this Honourable Court be pleased to issue an order injuncting the said law firm from releasing the balance of the purchase price of Kshs.1,824,919.00 in respect of the suit property L.R. No. Kwale/Ukunda/ 6959 to any of the parties in these proceedings, pending the inter partes hearing and determination of this application. (v) THAT pending the inter-partes hearing and determination of this application the Honourable Court be pleased to grant an injunction against the Plaintiffs, their agents, servants, employees, assignees or any other person acting on their behalf from entering, encroaching, taking possession, disposing, selling, encumbering, transferring, charging, demolishing any property or part thereof or in any other way interfering with the property Kwale/Ukunda/6959. (vi) THAT in the alternative to prayer (4) above and pending the interpartes hearing and determination of this application, this Honourable Court be pleased to grant orders in respect of maintaining the status quo on the suit property L.R. No. Kwale/Ukunda/6959. (vii) THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order injuncting the law firm of Saeta & Company Advocates from releasing the balance of the purchase price of Kshs. 1,824,919.00 in respect of the suit property L.R. No. Kwale/Ukunda/6959 to any of the parties in these proceedings. (viii) THAT upon the inter-partes hearing of determination of this application and pursuant to the parties' agreement reflected in the Court proceedings of the 10th March 2026 to engage in out of Court settlement, this Honourable Court be pleased to direct that 2 Ruling ELCLC E129/2025

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(ix) the mediation report be filed in Court on or before the 30th April 2026. THAT the costs of this Application be provided for. 3. The Application is supported by the affidavit of the Interested Parties/Applicant, Clinton Monda Benga, sworn on 18th March 2026. In opposition to the application, the 1st Plaintiff Mwinyi Hamisi Mwachijobwe filed a replying affidavit sworn on 9th April 2026. The 1st to 4th Defendants also jointly swore a replying Affidavit in opposition to the Application. The Application 4. The core arguments in the supporting affidavit are that the interested party/Applicant is the registered proprietor of property Kwale/Ukunda/6959 (hereinafter the"suit property") having purchased the same from the parties herein on the 9th of July 2023 after which it was transferred to him on the 19th January 2024. That during the process of the transfer, he was provided with a consent to transfer the property which had been executed by all the parties in this suit who are all members of the same family. He annexed as evidence copies of the Sale Agreement and Transfer showcasing the consent to transfer. He noted that he purchased the suit property with the purpose of constructing the headquarters for Umoja Boys Rescue Centre a CB0 for young needy street children in Ukunda within the larger Msambweni Sub-County in Kwale County which CBO was founded in 2022 and has been operational since then He availed as evidence copies of the registration and compliance documents as well as photographs showcasing the construction of the rescue Centre that was ongoing on the suit property. He decried the huge expenses incurred in undertaking the construction of the premises which has caused massive financial strain on the finances of the rescue Centre to the extent of being served with a notice to vacate the rented space. 5. He averred that the rescue Centre has been a bedrock for the care of needy children in Kwale County, is currently hosting 23 children in need of care, support, education and rehabilitation who have been placed by the State Department of Children Welfare Services through the Courts and the Police in Kwale County. He applauded the huge success attained by the 3 Ruling ELCLC E129/2025

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CBO over the years in rescuing, rehabilitating and reintegrating former street children back into society and with their families and noted that the effort has now been hit a massive setback occasioned by a simple family dispute which could have the adverse effect of leaving the children hopeless, homeless and destitute. 6. The applicant deposed that it is imperative that this matter be resolved in the fastest way possible for the sake of the young needy children whose education, shelter and general well-being is currently under the care of the rescue Centre and that having reached out to some of the Defendants herein, he can confirm that they are not averse to having the matter discussed and settled among the family members as it relates to a simple dispute amongst siblings regarding distribution of the purchase price amongst themselves. He urged the Court to invoke its inherent power and order that the suit be resolved through alternative dispute resolution method, the same being a family dispute. 7. He too deposed having reached out to Saeta Sophia, Advocate and a practitioner in the firm of Saeta & Company, Advocates who acted as Counsel for the Plaintiffs and Defendants herein in the conveyance and have information that part of the purchase price was still being held by the Advocate on account of the said dispute. Reply to the Application by the 1st Plaintiff 8. The 1st Plaintiff generally denied all the allegations in the Application and the Supporting Affidavit and deposed that he and his co-plaintiff did not consent to the sale and their signatures and IDs were forged. They therefore knew nothing of the whereabouts of the sale proceeds since they were not informed when the property was being sold. They sought the matter be resolved by the court since all attempts to settle have been futile. Reply to the Application by the 1st to 4th defendants 9. While in support of the application, the 1st to 4th Defendants confirms that they and the Plaintiffs are all family members and that they are the trustees of all property owned by the family and hold the titles to the said properties on behalf of the Plaintiffs and other family members. They confirm that the suit property Kwale/Ukunda/6959 is a subdivision of a larger parcel of land Kwale/Ukunda/2255 which was subdivided into 4 Ruling ELCLC E129/2025

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Kwale/Ukunda/6959 and Kwale/Ukunda/6960. The latter property remains unsold and is held by the 4 defendants in trust for all other family members who include the Plaintiffs. They deposed that, in disposing the suit property to the 1st Interested Party, all family members, including the Plaintiffs were called to several consultative meetings to discuss the sale but the Plaintiffs were reluctant to participating in the transfer despite multiple invitations to attend the meetings. That the meetings were witnessed by multiple persons including their advocate and the local chief who explained to them the consequences and in the end, all family members consented to the sale of the property and distribution of the proceeds equitably among all the family members. They averred that the 1st Plaintiff informed the family that he was not interested in the family estate. They deposed that only a share of the estate was transferred to the interested party while the remaining share would be equitably owned by the family members and that the proceeds of the sale of the property are yet to be totally shared among the family members as it is held by the intended interested party in trust for the family members. 10.The Defendants agrees that the Plaint raises internal family issues that are best resolved among the family members without the need for extensive litigation particularly noting that they are elderly members with limited access to the court premises. They thus prayed that the Court refer the matter to an independent mediator to assist them family resolve the matter as they had no intention of displacing innocent young needy children of the shelter they had now come to know as home because of family feuds that can be resolved amicably. 11.When the application first came up under a certificate of urgency, prayers (iii), (v) and (vi) were granted in the first instance. Those prayers as well as prayer number (i) are therefore spent. What remains for determination are prayers no (ii), (vii) and (viii) as well as the prayer for costs. Counsels opted to converse the application by way of written submissions. Submissions 12.As regards the issue of joinder, it was submitted for the applicant that the intended Interested party herein, Messrs Saeta and Company Advocates, acted as legal counsel for the family members during the sale and transfer of the suit property and still holds a portion of the purchase price paid by the Applicant hence their joinder in the suit is paramount in aiding the 5 Ruling ELCLC E129/2025

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court's understanding of the issues surrounding the sale and transfer. That additionally, the intended interest party will be directly and substantially affected by any Judgement issued by this Honourable Court as they currently hold the balance of the purchase price of the suit property and as such their participation is paramount. Counsel argued that the Respondents stand to suffer no prejudice and sought the application be granted. He referred the court to the case of Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] KEELC 624 (KLR) where the court held; ‘’ It is not enough for one to merely show that he/ she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A Judgment or order in most cases does not only affect the litigants in the matter. It does have ramification for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in the suit as an Interested Party’’. 13.He too gave refence to Nduva & 3 others v Ndar & 3 others; Ng'ang'a (Intended Interested Party) [2024] КЕНС 8118 (KLR) where it was held ‘’all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs." 14.As regards whether the court should refer the dispute to mediation, counsel submitted that the law mandates this court to promote alternative forms of dispute resolution. He quoted Article 159 (2) ( c), Article 60 (1) of the Constitution, Section 20 of the Environment and Land Act No 8D of 2011 and Section 59C of the Civil Procedure Act and urged me refer the matter to Court Annexed Mediation as mandated by those provisions. 15.Counsel also cited Burgei v Kemboi & 2 others [2026] KEELC 3663 (KLR) where it was held thus: 'Beyond Articles 60(1)(g) and 159(2)(c) of the Constitution, ADR is firmly erected on the firm foundation of Article 1 of the Constitution. Article 1 of 6 Ruling ELCLC E129/2025

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the Constitution recognizes constituent power (that the people of Kenya can exercise their sovereign power directly or indirectly). (7) And so, provided that ADR is not applied in a manner that contravenes the Bill of Rights; repugnant to justice and morality; or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law, Article 159(2)(c) of the Constitution - which provides that "(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3)" - enjoins this Court to promote ADR." 16.For the plaintiffs, counsel supported the grant of prayers (ii), (iii), (vi) and (vii) stating that they are intended to facilitate the just, expeditious and effective determination of the dispute before the Court, are necessary for the protection of the parties' respective interests and will assist the Court in arriving at a fair and comprehensive determination of all issues in controversy. 17.As regards prayer (viii), counsel argued that mediation has already been attempted among the family members before the institution of these proceedings without any success as it failed to yield any settlement or consensus. That having exhausted the avenue of family mediation without success, referring the matter back to mediation would only occasion unnecessary delay, increase costs and prolong the determination of this dispute. He argued that it is therefore in the interests of justice that the matter proceeds to final determination by the Court. 18.On behalf of the 1st to 4th Defendants, counsel welcomed mediation and submitted that it affords the parties flexibility to explore creative solutions which the Court may not be able to impose through a final judgment. These solutions may include redistribution of remaining assets, compensation, future sharing arrangements or any other mutually agreeable settlement. Counsel noted that family disputes are among the categories of disputes most suitable for mediation because they involve emotional, cultural and relational considerations which often transcend strict legal rights and unlike litigation, mediation provides parties with an opportunity to communicate openly, understand each other's concerns and arrive at durable solutions acceptable to all concerned. Counsel pointed that the Judiciary has consistently encouraged the referral of suitable disputes to Court-Annexed Mediation in furtherance of the constitutional 7 Ruling ELCLC E129/2025

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objective under Article 159(2)(c) and urged the Court to seize the opportunity to facilitate reconciliation among the parties before they become further entrenched through prolonged litigation. Analysis and Determination 19.From the responses to the application, the replying affidavits and the submissions, it is clear that save for the prayer number (viii), the application is generally unopposed. Indeed, the plaintiffs expressly indicated that they support prayers (ii), (iii), (vi), and (vii) while the defendants expressly welcome referral of the matter to the court annexed mediation. As noted earlier on, prayers no. (iii) and(vi) are however spent being order sought pending the hearing of the application. 20.Though the question of joinder is not contested, never the less and particularly noting that this application is not brought by the intended third party, the court is called upon to determine whether or not the applicant has satisfied the legal requirements for joinder before dragging the intended third party into litigation that it has not applied to join. The issues for determination therefore are: a. Whether the Applicant has met the statutory and jurisprudential requirements for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules. b. Whether the Applicant or the intended interested party is likely to suffer prejudice if the intended interested party is not joined in the suit. c) Whether the matter should be referred to the Court Annexed Mediation. Whether the Intended Interested Party should be joined in the suit? 21.The Applicant seeks joinder under Order 1 Rule 10(2) of the Civil Procedure Rules, which provides: “The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 8 Ruling ELCLC E129/2025

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When the above principles are applied to the facts of these applications it is clear that the guiding principles when an intending party is to be joined are as follows: ‘1. He must be a necessary party. 2.He must be a proper party. 3.In the case of a defendant there must be a relief flowing from that defendant to the plaintiff. 4.The ultimate order or decree cannot be enforced without his presence in the matter. 5.His presence is necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit.’ These principles were elaborately set out in the case of Nduva & 3 others v Ndar & 3 others; Ng'ang'a (Intended Interested Party) [2024] КЕНС 8118 (KLR) cited by counsel for the applicant where the Court held that: "The above echoing the definition by the Supreme Court of Kenya in the case of Attorney General v David Ndii & 73 Others (Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR), which decision offered guidance on the applicable principles in an application of joinder by an interested party. Reiterating its earlier decisions touching on the question, the Court stated that: -"An Applicant to be enjoined as an Interested Party has to satisfy this Court that it has met the legal requirements for joinder.........This court has laid down the guiding principles applicable in determining an application to be enjoined as an interested party in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others SC Petition (Application) No. 12 of 2013. The principles were affirmed in the case of Francis Karioki Muruatetu & another v Republic & 5 others (supra) where the court stated: ".... One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements: (i)The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. (ii)The prejudice to be suffered by the intended interested party in case of nonjoinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote 9 Ruling ELCLC E129/2025

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(iii)Lastly, a party must, in its application, set out the case and/ or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court….” 22.It is already clear that necessary parties are those essential to the constitution of the suit, without whom no decree can be issued. They are those with an identifiable stake in the matter, an interest that is proximate enough and not just a pedestrian or a peripheral one. The gist of the matter in this case, is that land parcel number Kwale/Ukunda/2255 belonging to the estate of the parties’ late grandfather was subdivided and one of the resultant titles Kwale/Ukunda/ 6959 sold to the interested party by some of the family member specifically the1st to 4th Defendants without involving and without the consent of the rest of the other family members among them the two Plaintiffs. It is alleged that signatures and Identity Cards used to purport consent were forged and fraudulently obtained, an allegation that the defendants negate. There lie the issues for this court’s determination. Is it necessary to join the Advocate who conducted the conveyancing for the contracting parties simply because she is still holding part of the purchase price? Does the advocate have any stake in the dispute? Is her participation necessary to be able to determine the dispute? If she sits on the sidelines and opt not to say a word in submission, can it prejudice her or any of the parties to the dispute? None of these questions can be answered in the affirmative. Simply because the Advocate is holding proceeds of the sale does not make her a necessary party to the current disputes. It would be superfluous to join the intended interested party to a case they have absolutely no stake in and force them to incur expenses. There is therefore no risk of miscarriage of justice or irreparable prejudice. Whether the Court ought to refer the matters to Alternative Dispute Resolution 23.Article 159 (2) (c) of the Constitution of Kenya 2010 mandates the Judiciary to promote the implementation of Alternative Dispute Resolution Mechanisms as a means to advance justice. Article 60 (1) on Land Policies encourages communities to settle land disputes through recognized local community initiatives consistent with the Constitution. Further, section 20 of the Environment and Land Act Cap 8D of 2011 encourage the adoption 10 Ruling ELCLC E129/2025

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and implementation of appropriate Alternative Dispute Resolution Mechanisms including conciliation, mediation and traditional dispute resolution mechanisms in accordance with Article 159(2)(c) of the Constitution. The promotion/encouragement/ implementation can be on the court’s own motion, with the agreement of the parties or at the request of the parties. Section 59C of the Civil Procedure Act (Cap 21) is also explicit on the role of the court in promoting alternative means of dispute resolution. It stipulates; ‘’1. A suit may be referred to any other method of dispute resolution where the parties agree or the court considers the case suitable for such referral. 2. Any other method of alternative dispute resolution shall be governed by such procedure as the parties themselves agree to or as the court may, in its discretion, order. 3. Any settlement arising from a suit referred to any other alternative dispute resolution method by the court or agreement of the parties shall be enforceable as a judgement of the court." The only reason why the Plaintiffs are opposed to a referral to mediation is because an attempt at reconciliation made at the family level before filling suit did not succeed. It does not automatically mean that mediation must fail because conciliation failed. This court is mandated, no less by the Constitution itself to promote Alternative Dispute Resolution Mechanisms. Conclusion 24.In the final analysis, this Court finds that the Interested Parties’ prayer to join the intended interested party to the suit is without any merit. The prayer for referral of the dispute to the Court Annexed Mediation is merited and is allowed. 25. Disposition a. The Applicants’ Notice of Motion dated 18th March 2026 is hereby allowed in part only to the extent that this case is as at the date of this ruling referred to the Court Annexed mediation. A report to be filled within 60 days from the referral date. b. Prayer number 7 being contingent to the grant of prayer number 2 must of necessity fails. 11 Ruling ELCLC E129/2025

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c. Costs of the application will abide the outcome of the suit. Dated, Signed and Delivered virtually via Microsoft teams at Kwale this 29 th day of September 2026. HON. E.G NDERITU L J ELC KWALE In the presence of: Mr. Waweru for 1st to 4th Defendants and h/b for Mr. Munyao for the Interested Party/Applicant Ms. Mwanazumbah for the 5th Defendant Ms. Halima C/A 12 Ruling ELCLC E129/2025

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