1. This ruling seeks to determine the two applications; one filed by the plaintiff dated 24 July 2025 and the other dated 19 November 2025 filed by the intended defendants. In the first application, the plaintiff prays for the following orders: -
a) THAT the honourable court be pleased to strike out the suit herein for being res judicata.
b) THAT the costs of this application be provided for.
2. The motion is supported by the grounds outlined in the body thereof and the plaintiff’s supporting affidavit, sworn on the instant date. He succinctly asserts that this suit is similar to Machakos Environment and Land Case No. 172 of 2010 (“previous case”), which was heard on its merits, with a decision delivered on 8th March 2023. He alleges that both cases concern land parcel No. Mavoko Block 3/1973 (“1973”). He maintains that a rehearing of this matter would be an abuse of the court process, since the parties are the same and a competent court has already rendered a decision. He presented several documents in support of his assertions.
3. The 1st defendant supported the motion, largely reiterating the plaintiff’s averments, and additionally asserts that, since the ownership of 1973, which was allegedly later altered to 1974, has already been conclusively determined, any further proceedings would risk inconsistent outcomes, thereby eroding public confidence in the judicial process. He maintains that the plaintiff has the right to deal with his own suit as he wishes, including seeking to have it struck out.
4. The 3rd defendant opposed the motion via the replying affidavit of Vincent O. Ogilo, sworn on 10 November 2025, where, in summary, he states that the two cases involve two separate properties: 1973 (in the previous case) and Mavoko Town Block 3/1974 (in this case). This latter parcel of land shall henceforth be referred to as “1974”. It clarifies that while the 3rd defendant has interests in both properties, the properties are distinct. He avers that the plaintiff’s claim that they are the same property on the ground is misleading and unsubstantiated, as a prior court ruling has already clarified this distinction. Additionally, he argues the doctrine of res judicata does not apply, as the two cases concern different properties and a determination of ownership of 1974 has not been conclusively rendered, which is central to the 3rd defendant's counterclaim.
5. Concerning the intended defendants’ application, they seek the following reliefs from this court: -
a) THAT Bernard Mugaisi, Newton Mkabwe, and Ruth Nunga Gichuhi, the applicants herein, be joined to these proceedings as defendants in representative capacity on behalf of all Waswa Phase Two Block 514 members.
b) THAT upon being joined, the applicants be granted leave to file any necessary pleadings to ventilate their interest in the 1974.
c) THAT the notice of this representative action be issued to all former Phase 2 members/allottees of Waswa Development Society, either by way of newspaper advertisement or by such other means as the court may direct.
d) THAT the honourable court be pleased to direct that any person or entity claiming an interest, right or title in respect of 1974, or any portion or subdivision thereof, whether by purchase, transfer or otherwise, be joined to these proceedings as interested or necessary parties, to ventilate their interests, for the just and complete determination of all issues relating to ownership and occupation.
e) THAT the notice of this court's direction to join be issued to all persons or entities claiming an interest, right or title in respect of 1974, or any portion thereof, either by way of newspaper advertisement or such other means as the court may direct.
f) THAT pending the hearing and determination of this suit, an order of inhibition be registered against 1974 and any title arising from it, to preserve the subject matter of this suit until its final determination.
g) THAT the costs of this application be provided for.
6. The motion is supported by the grounds on the face thereof and on the supporting affidavit of Bernard Mugaisi, sworn on the instant date and in brief, he informs the court that the applicants are former members of the Water and Sewerage Welfare Association (“WASWA”) who, after contributing to the purchase of 1974, were allocated individual plots. He states that though the 3rd defendant herein was formed by some members of WASWA to aid in the processing of titles to the suit property on behalf of the rightful members, and although it is a party in this suit, not all members of WASWA Phase Two Block 514 are shareholders in it, hence they fear that their interest may not be adequately articulated.
7. Moreover, he asserts that some members now occupy and have developed these plots. Recently, outsiders have claimed ownership of some plots, resulting in multiple court cases. They argue that their joinder in this matter will ensure everyone is fairly heard and prevent further transfers or subdivisions of the property until the dispute is resolved.
8. Through his replying affidavit, sworn on 13 February 2026, the plaintiff challenged the motion and repeated his assertions in his earlier supporting affidavit and added that it appears the intended defendants' claim is derivative.
9. Analogous to the plaintiff, the 1st defendant, in his replying affidavit of 11 February 2026, opposed the motion, repeated his earlier assertions that the suit was res judicata, and further stated that the intended defendants, who are seeking joinder, have no connection whatsoever with the plaintiff. Additionally, the alleged interests arise from transactions with third parties who purported to sell them portions of land, and that their claims, if any, lie against those vendors and not against the plaintiff or the defendants herein.
10. Accordingly, in accordance with the court's directions, the law firms of Ms. J.M. Kimathi & Partners Advocates LLP for the plaintiff and Ms. Gorrety Adhiambo Otieno & Co. Advocates for the 3rd defendant and the intended 5th defendants, respectively, filed their submissions dated 18 February 2026 and 9 March 2026. Accordingly, having given careful thought to the motions, their grounds, affidavits, rival submissions, the legal framework and prevailing jurisprudence, the issues for joinder are (a) whether the present suit is res judicata and whether the 5th defendants should be joined as parties to these proceedings. We now deal in a sequential manner.
a. Whether the present suit is res judicata
11. The legal framework on the doctrine of res judicata is found in our Section 7 of the Civil Procedure Act, in the following terms: -
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
12. In illuminating this doctrine, the learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012, page 293, explained the purpose of the doctrine and its exceptions in the following words:
“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
13. In discussing this principle in the decision Kenya Commercial Bank Limited & another v Muiri Coffee Estate Limited & 3 others [2016] KESC 6 (KLR), the Supreme Court of Kenya clarified as follows:
“52. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights.”
14. This decision extends further in paragraph 54 by stating: -
“54.The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.”
15. As held in the decision of Makau & 2 others & 2 others (Suing as the Administrators of the Estate of the Late Thomas Makau Musyoki - Deceased) v Syokimau Farm Limited & 2 others [2024] KEELC 3981 (KLR), when the doctrine of res judicata arises in a suit, the court is called to scrutinize the decision and pleadings and record of the former case that is claimed to have settled the issues in question, ascertain the issues determined in the former case, and whether these are the same in the subsequent case, establish if the parties are the same, or are litigating under the same title, and whether the former case was determined by a court of competent jurisdiction. As submitted by the 3rd defendant, these elements must all exist conjunctively.
16. Thus, having considered this former decision vis-à-vis this decision, the competence of the court in the previous suit, which determined the case with finality on merits, is undoubted. Thus, the court must now evaluate other criteria, including: (a) if the parties involved in both suits are the same, (b) the issues in dispute are identical in both cases, and (c) the parties are litigating under the same title or claim.
17. Regarding test (a), the court has reviewed the previous case in relation to the current suit and determines that certain parties involved in the former case are identical to those in this matter. In the previous case, the plaintiffs therein were the plaintiff and the 1st defendant herein. Further, the 3rd defendant herein was also a defendant therein. In that previous case, the 3rd defendant alleged it had purchased 1973 from the 4th defendant herein. Based on the principles of commonality as outlined in Explanation (6) of Section 7 of the Civil Procedure Act, it can be argued that the 4th defendant is not protected by the doctrine of res judicata in these proceedings. However, this does not apply to the 2nd defendant and interested parties, who were not parties to the earlier suit. Indeed, the interested parties in the previous case are distinct from those involved in the current proceedings.
18. Respecting tests (b) and (c), Order 4, Rule 3 of the Civil Procedure Rules (CPR) provides that when the subject matter of the suit pertains to immovable property such as land, the plaint or counterclaim, as applicable, must include a description of the property sufficient to identify it. With this in mind, the court has thoroughly considered the pleadings in the two cases, as well as the judgment, and concurs with the 3rd defendant that the subject matters and claims are distinct.
19. In the previous case, the suit property was 1973, whereas in the current case, the suit property is 1974. Copies of the title documents presented to the court indicate that they were all registered in the name of the 1st defendant on different dates and that they vary in size. Furthermore, the claims in the two suits are not identical; in the previous case, the plaintiff alleged fraud, whereas in the present matter, the claim is for breach of contract. The 3rd defendant’s counterclaim herein is on 1974. Pointedly, the consent judgment of 27 April 2024, which was subsequently set aside by the court, also recognised the suit properties as separate entities. In the end, this court finds that this matter is not res judicata. It also finds that if, at all, the plaintiff litigated over a non-existent parcel of land in the previous suit, then he has to solely bear the burden of holding an unenforceable judgment.
b. Whether the 5th defendants should be joined as parties to these proceedings.
20. The pertinent law on joinder of a party is found in Order 1 Rule 10(2) of the Civil Procedure Rules (CPR) which has predominantly been construed to mean that the party who ought to be joined or added to civil proceedings, whether as a defendant, plaintiff, or interested party, whose presence in the proceedings would be essential to assist the court in determining the matter effectively and comprehensively, should be incorporated into the proceedings. This proviso states as follows: -
“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.”
21. The Black’s Law Dictionary, 11th Edn, page 1351, defines an interested party in the following terms:
“A party who has a recognizable stake (and therefore standing) in a matter.”
22. The meaning of this definition was reiterated in the Supreme Court of Kenya's decision in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), as follows:
“3. An interested party was one who had a stake in the proceedings, though they were not initially a party to the cause. Such a person felt that their interest would not be well articulated unless they personally appeared in the proceedings, and championed their cause.”
23. When considering a motion for joinder, the court exercises prudent discretion rooted in law and reason. Therefore, this court adopts the guiding principles established in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), thus: -
“37. From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: 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: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.The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.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.”
24. Hence, having scrutinised the annexures supporting the motion, and noting that some of these annexures are illegible, this court finds that the documents, which include payslips and records from WASWA and the 3rd defendant, this court finds they do not establish a nexus with 1974. Accordingly, the proposed joinder of the intended defendants fails to satisfy the applicable legal threshold, as the documents do not substantiate their proprietary interest in 1974. Furthermore, even if the parties are shareholders of the 3rd defendant, members of WASWA, or have purchased land from such shareholders or members, the court holds that they will not be prejudiced by their non-joinder, as it appears their claims are grounded on the same title as the 3rd defendant, who has lodged a counterclaim in this matter. In any event, any claim by shareholders against the company (3rd defendant) must be pursued as a derivative action, which necessitates leave. Further, it appears that there are several other cases in which these alleged members/shareholders/purchasers have filed, and, thus, joinder would be non-suited in these proceedings.
25. In the end, this court finds the notices of motion dated 24 July 2025 and 19 November 2025 are not merited. They are both dismissed, with each party bearing their respective costs. No further applications shall be filed in this matter without leave. The matter is hereby transferred to Mavoko ELC. A mention date shall be given before that court.
It is so ordered.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Miss Madowo for Miss Otieno for 3rd defendant and 5th intended party.
Miss Mutuku for 1st defendant.
Mr. Muli for 2nd defendant.
No appearance for other parties.
a) THAT the honourable court be pleased to strike out the suit herein for being res judicata.
b) THAT the costs of this application be provided for.
2. The motion is supported by the grounds outlined in the body thereof and the plaintiff’s supporting affidavit, sworn on the instant date. He succinctly asserts that this suit is similar to Machakos Environment and Land Case No. 172 of 2010 (“previous case”), which was heard on its merits, with a decision delivered on 8th March 2023. He alleges that both cases concern land parcel No. Mavoko Block 3/1973 (“1973”). He maintains that a rehearing of this matter would be an abuse of the court process, since the parties are the same and a competent court has already rendered a decision. He presented several documents in support of his assertions.
3. The 1st defendant supported the motion, largely reiterating the plaintiff’s averments, and additionally asserts that, since the ownership of 1973, which was allegedly later altered to 1974, has already been conclusively determined, any further proceedings would risk inconsistent outcomes, thereby eroding public confidence in the judicial process. He maintains that the plaintiff has the right to deal with his own suit as he wishes, including seeking to have it struck out.
4. The 3rd defendant opposed the motion via the replying affidavit of Vincent O. Ogilo, sworn on 10 November 2025, where, in summary, he states that the two cases involve two separate properties: 1973 (in the previous case) and Mavoko Town Block 3/1974 (in this case). This latter parcel of land shall henceforth be referred to as “1974”. It clarifies that while the 3rd defendant has interests in both properties, the properties are distinct. He avers that the plaintiff’s claim that they are the same property on the ground is misleading and unsubstantiated, as a prior court ruling has already clarified this distinction. Additionally, he argues the doctrine of res judicata does not apply, as the two cases concern different properties and a determination of ownership of 1974 has not been conclusively rendered, which is central to the 3rd defendant's counterclaim.
5. Concerning the intended defendants’ application, they seek the following reliefs from this court: -
a) THAT Bernard Mugaisi, Newton Mkabwe, and Ruth Nunga Gichuhi, the applicants herein, be joined to these proceedings as defendants in representative capacity on behalf of all Waswa Phase Two Block 514 members.
b) THAT upon being joined, the applicants be granted leave to file any necessary pleadings to ventilate their interest in the 1974.
c) THAT the notice of this representative action be issued to all former Phase 2 members/allottees of Waswa Development Society, either by way of newspaper advertisement or by such other means as the court may direct.
d) THAT the honourable court be pleased to direct that any person or entity claiming an interest, right or title in respect of 1974, or any portion or subdivision thereof, whether by purchase, transfer or otherwise, be joined to these proceedings as interested or necessary parties, to ventilate their interests, for the just and complete determination of all issues relating to ownership and occupation.
e) THAT the notice of this court's direction to join be issued to all persons or entities claiming an interest, right or title in respect of 1974, or any portion thereof, either by way of newspaper advertisement or such other means as the court may direct.
f) THAT pending the hearing and determination of this suit, an order of inhibition be registered against 1974 and any title arising from it, to preserve the subject matter of this suit until its final determination.
g) THAT the costs of this application be provided for.
6. The motion is supported by the grounds on the face thereof and on the supporting affidavit of Bernard Mugaisi, sworn on the instant date and in brief, he informs the court that the applicants are former members of the Water and Sewerage Welfare Association (“WASWA”) who, after contributing to the purchase of 1974, were allocated individual plots. He states that though the 3rd defendant herein was formed by some members of WASWA to aid in the processing of titles to the suit property on behalf of the rightful members, and although it is a party in this suit, not all members of WASWA Phase Two Block 514 are shareholders in it, hence they fear that their interest may not be adequately articulated.
7. Moreover, he asserts that some members now occupy and have developed these plots. Recently, outsiders have claimed ownership of some plots, resulting in multiple court cases. They argue that their joinder in this matter will ensure everyone is fairly heard and prevent further transfers or subdivisions of the property until the dispute is resolved.
8. Through his replying affidavit, sworn on 13 February 2026, the plaintiff challenged the motion and repeated his assertions in his earlier supporting affidavit and added that it appears the intended defendants' claim is derivative.
9. Analogous to the plaintiff, the 1st defendant, in his replying affidavit of 11 February 2026, opposed the motion, repeated his earlier assertions that the suit was res judicata, and further stated that the intended defendants, who are seeking joinder, have no connection whatsoever with the plaintiff. Additionally, the alleged interests arise from transactions with third parties who purported to sell them portions of land, and that their claims, if any, lie against those vendors and not against the plaintiff or the defendants herein.
10. Accordingly, in accordance with the court's directions, the law firms of Ms. J.M. Kimathi & Partners Advocates LLP for the plaintiff and Ms. Gorrety Adhiambo Otieno & Co. Advocates for the 3rd defendant and the intended 5th defendants, respectively, filed their submissions dated 18 February 2026 and 9 March 2026. Accordingly, having given careful thought to the motions, their grounds, affidavits, rival submissions, the legal framework and prevailing jurisprudence, the issues for joinder are (a) whether the present suit is res judicata and whether the 5th defendants should be joined as parties to these proceedings. We now deal in a sequential manner.
a. Whether the present suit is res judicata
11. The legal framework on the doctrine of res judicata is found in our Section 7 of the Civil Procedure Act, in the following terms: -
“No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
12. In illuminating this doctrine, the learned authors of Mulla, Code of Civil Procedure, 18th Ed. 2012, page 293, explained the purpose of the doctrine and its exceptions in the following words:
“The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
13. In discussing this principle in the decision Kenya Commercial Bank Limited & another v Muiri Coffee Estate Limited & 3 others [2016] KESC 6 (KLR), the Supreme Court of Kenya clarified as follows:
“52. Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights.”
14. This decision extends further in paragraph 54 by stating: -
“54.The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.”
15. As held in the decision of Makau & 2 others & 2 others (Suing as the Administrators of the Estate of the Late Thomas Makau Musyoki - Deceased) v Syokimau Farm Limited & 2 others [2024] KEELC 3981 (KLR), when the doctrine of res judicata arises in a suit, the court is called to scrutinize the decision and pleadings and record of the former case that is claimed to have settled the issues in question, ascertain the issues determined in the former case, and whether these are the same in the subsequent case, establish if the parties are the same, or are litigating under the same title, and whether the former case was determined by a court of competent jurisdiction. As submitted by the 3rd defendant, these elements must all exist conjunctively.
16. Thus, having considered this former decision vis-à-vis this decision, the competence of the court in the previous suit, which determined the case with finality on merits, is undoubted. Thus, the court must now evaluate other criteria, including: (a) if the parties involved in both suits are the same, (b) the issues in dispute are identical in both cases, and (c) the parties are litigating under the same title or claim.
17. Regarding test (a), the court has reviewed the previous case in relation to the current suit and determines that certain parties involved in the former case are identical to those in this matter. In the previous case, the plaintiffs therein were the plaintiff and the 1st defendant herein. Further, the 3rd defendant herein was also a defendant therein. In that previous case, the 3rd defendant alleged it had purchased 1973 from the 4th defendant herein. Based on the principles of commonality as outlined in Explanation (6) of Section 7 of the Civil Procedure Act, it can be argued that the 4th defendant is not protected by the doctrine of res judicata in these proceedings. However, this does not apply to the 2nd defendant and interested parties, who were not parties to the earlier suit. Indeed, the interested parties in the previous case are distinct from those involved in the current proceedings.
18. Respecting tests (b) and (c), Order 4, Rule 3 of the Civil Procedure Rules (CPR) provides that when the subject matter of the suit pertains to immovable property such as land, the plaint or counterclaim, as applicable, must include a description of the property sufficient to identify it. With this in mind, the court has thoroughly considered the pleadings in the two cases, as well as the judgment, and concurs with the 3rd defendant that the subject matters and claims are distinct.
19. In the previous case, the suit property was 1973, whereas in the current case, the suit property is 1974. Copies of the title documents presented to the court indicate that they were all registered in the name of the 1st defendant on different dates and that they vary in size. Furthermore, the claims in the two suits are not identical; in the previous case, the plaintiff alleged fraud, whereas in the present matter, the claim is for breach of contract. The 3rd defendant’s counterclaim herein is on 1974. Pointedly, the consent judgment of 27 April 2024, which was subsequently set aside by the court, also recognised the suit properties as separate entities. In the end, this court finds that this matter is not res judicata. It also finds that if, at all, the plaintiff litigated over a non-existent parcel of land in the previous suit, then he has to solely bear the burden of holding an unenforceable judgment.
b. Whether the 5th defendants should be joined as parties to these proceedings.
20. The pertinent law on joinder of a party is found in Order 1 Rule 10(2) of the Civil Procedure Rules (CPR) which has predominantly been construed to mean that the party who ought to be joined or added to civil proceedings, whether as a defendant, plaintiff, or interested party, whose presence in the proceedings would be essential to assist the court in determining the matter effectively and comprehensively, should be incorporated into the proceedings. This proviso states as follows: -
“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.”
21. The Black’s Law Dictionary, 11th Edn, page 1351, defines an interested party in the following terms:
“A party who has a recognizable stake (and therefore standing) in a matter.”
22. The meaning of this definition was reiterated in the Supreme Court of Kenya's decision in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), as follows:
“3. An interested party was one who had a stake in the proceedings, though they were not initially a party to the cause. Such a person felt that their interest would not be well articulated unless they personally appeared in the proceedings, and championed their cause.”
23. When considering a motion for joinder, the court exercises prudent discretion rooted in law and reason. Therefore, this court adopts the guiding principles established in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), thus: -
“37. From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: 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: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.The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.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.”
24. Hence, having scrutinised the annexures supporting the motion, and noting that some of these annexures are illegible, this court finds that the documents, which include payslips and records from WASWA and the 3rd defendant, this court finds they do not establish a nexus with 1974. Accordingly, the proposed joinder of the intended defendants fails to satisfy the applicable legal threshold, as the documents do not substantiate their proprietary interest in 1974. Furthermore, even if the parties are shareholders of the 3rd defendant, members of WASWA, or have purchased land from such shareholders or members, the court holds that they will not be prejudiced by their non-joinder, as it appears their claims are grounded on the same title as the 3rd defendant, who has lodged a counterclaim in this matter. In any event, any claim by shareholders against the company (3rd defendant) must be pursued as a derivative action, which necessitates leave. Further, it appears that there are several other cases in which these alleged members/shareholders/purchasers have filed, and, thus, joinder would be non-suited in these proceedings.
25. In the end, this court finds the notices of motion dated 24 July 2025 and 19 November 2025 are not merited. They are both dismissed, with each party bearing their respective costs. No further applications shall be filed in this matter without leave. The matter is hereby transferred to Mavoko ELC. A mention date shall be given before that court.
It is so ordered.
Delivered and Dated at Machakos this 22nd day of September, 2026.
HON. A. Y. KOROSS
JUDGE
22.09.2026
Ruling delivered virtually through Microsoft Teams Video Conferencing Platform;
In the presence of;
Ms. Kanja Court Assistant.
Miss Madowo for Miss Otieno for 3rd defendant and 5th intended party.
Miss Mutuku for 1st defendant.
Mr. Muli for 2nd defendant.
No appearance for other parties.