The APPLICANTS CASE
The application before this court by the Kenya Pipeline Company (hereby referred to as the intended Interested Party) is dated 28th August, 2026 seeking orders that the intended interested party be enjoined in the proceeding herein as an interested party. Though the application is not opposed by the plaintiff the same is opposed by the defendant herein vide a replying affidavit sworn by the defendant on 1st September, 2026.
According to the intended interested party the main issue that arises is whether she is entitled to the prayers sought for enjoinder in the proceeding herein as an interested party. The interested party submits that that there are sufficient reasons advanced to persuade the Court to allow the application having met the legal threshold for enjoinder. The interested party submits that the suit property is the parcel of land originally known as Plot No. 287 Section V Mainland North, situate in the Province of Seyidie at S.E. of Mazeras Station, measuring approximately 983 acres and registered as C.R. 6302. That By a Deed of Grant of Easement made in 1975 between the then registered proprietors (Abdul Ghafar Sultanali Chaudhry, Mohamed Jaffer Abdulrasul Panju and Abdul Manan Abdul Rehaman Keher Qureshi) of the one part and Kenya Pipeline Company Limited of the other part, an easement was granted over a strip of land thirty (30) metres in width for the construction, repair, replacement and operation of a petroleum products pipeline and all necessary ancillary apparatus.
The Schedule to the Grant describes the land as Sub-division Number 412 (Original Number 287), measuring approximately 973 acres, registered as C.R. 6302/1. The applicant states that on 29th September 1983 Kenya Pipeline Company Limited presented and registered a Caveat forbidding the registration of any dealing with the land unless expressed to be subject to its claim. The Caveat was registered against C.R. 6302 as Entry No. 54A. Pursuant to the Grant of Easement, Kenya Pipeline Company Limited constructed and has continuously operated critical national petroleum pipeline infrastructure within the 30-metre corridor. The infrastructure forms an integral and strategic component of Kenya's national petroleum transportation network.
The easement is an overriding interest within the meaning of Section 28 of the Land Registration Act, 2012 and is further recognized and protected under Section 149 of the Land Act, 2012. As an overriding interest it binds the suit property irrespective of any subsequent transfer, change of ownership, or determination of title as between the Plaintiff and the Defendant.
In 2015 the Plaintiff applied for an official search in respect of what it claimed was Plot No. 1948 (Original No. 412/20 or 412/10) Section V Mainland North, C.R. 32564. When the search was not forthcoming, the Plaintiff filed High Court Petition No. 58 of 2015. By a decree dated 29th June 2016 the High Court ordered reconstruction of the registry records on the basis of certified copies of the original title documents which the Land Registrar had inspected and confirmed he was satisfied with. Reconstruction was carried out solely on the basis of documents supplied by the Plaintiff.
Armed with the reconstructed register, the Plaintiff instituted the present suit by Plaint dated 28th November 2016 seeking a declaration that the Defendant has no right or interest in the property and a permanent injunction. The Defendant filed a Defence and Counterclaim asserting that his late grandfather, Mbarak Awadh Salim, purchased the entire original parcel (C.R. 6302) in 1978 and that the property had never been subdivided.
The Environment and Land Court delivered judgment on 19th January 2022 in favour of the Plaintiff and dismissed the Counterclaim. The Defendant appealed and on 23rd February 2024 the Court of Appeal which allowed the appeal, set aside the ELC judgment, declared the Plaintiff's title and certificate of title null and void, and held that the estate of Mbarak Awadh Salim is the beneficial owner of the property.
According to the interested party, the Court of Appeal examined the reconstructed register in detail. It observed that the Defendant's version of the Certificate of Ownership contained only the first fourteen entries, while the Plaintiff's version contained fifty-four entries. Entry No. 54A (the Caveat by Kenya Pipeline Company Limited) appeared only on the Plaintiff's expanded version. The Court of Appeal found that reconstruction had been undertaken solely on documents supplied by the Plaintiff, without Gazette Notice and without notice to other interested persons, and that the propriety of the subsequent entries was highly questionable. The Court ultimately nullified the Plaintiff's title founded on that reconstructed register.
The Plaintiff appealed to the Supreme Court and on 23rd January 2026 the Supreme Court in Petition No. E009 of 2024 remitted the matter to this Honourable Court for priority re-hearing and determination of the unresolved questions arising from the Court of Appeal's decision, including questions that directly affect the validity and continuity of the entries on the reconstructed register.
The intended interested party was never a party to the original proceedings in this Court, the Court of Appeal or the Supreme Court. Its original primary documents being the 1975 Grant of Easement and the 1983 Caveat among other critical documents have never been placed before any court and those documents pre-date the reconstruction by decades.
At the hearing of the intended interested party's application, the plaintiff stated that they were not opposed to the application whereas the defendant stated that they were opposed to the application thereafter this honourable court directed that parties proceed to file brief written submissions.
The Defendant's position as discerned from the replying affidavit and submissions is that the Application is misconceived and unnecessary for the determination of the dispute presently before this Honourable Court. The Intended Interested Party seeks to introduce an alleged easement which has not been challenged, placed in issue or made the subject of any relief in either the Plaint or the Draft Amended Plaint. The defendant argues that there is already pending before this Honourable Court an earlier Notice of Motion dated 03rd July 2026, filed by the Plaintiff, which seeks the joinder of the Intended Interested Party to these proceedings. The present Application therefore substantially duplicates an issue already pending determination before this Honourable Court.
The Defendant further submits that the Court is presently seized of a matter which has been remitted to it by the Supreme Court for rehearing and determination within the parameters identified by the Apex Court. The proceedings ought not to be expanded through the introduction of an independent controversy concerning an alleged easement which does not arise from the pleadings or the questions remitted for determination.
The defendant respectfully argues that the pendency of the Plaintiff's earlier Application for joinder renders the present Application duplicative and unnecessary. The Defendant maintains that the issue of joinder of the Intended Interested Party is already before this Honourable Court and is pending determination pursuant to the Plaintiff's Notice of Motion dated 03rd July 2026.
The Intended Interested Party subsequently filed the present Notice of Motion dated 28th August 2026, by which it independently seeks to be joined to the same proceedings. The substantive issue of whether the Intended Interested Party ought to be joined is therefore already pending determination before this Honourable Court. According to the defendant, while the present circumstances do not constitute the conventional application of Section 6 of the Civil Procedure Act in the strict sense of two separate suits between the same parties, the underlying principle of the doctrine of sub judice is directly applicable. A party ought not to invoke the Court's process through a subsequent application seeking determination of an issue which is already pending before the same Court.
There is no utility whatsoever in permitting two separate Applications seeking substantially the same procedural relief namely, the joinder of the Intended Interested Party to proceed concurrently. Doing so would occasion unnecessary duplication of judicial proceedings and resources.
The Court retains an inherent jurisdiction to regulate its proceedings and to prevent its process from being employed in a manner that occasions unnecessary duplication, multiplicity of proceedings or abuse of process. That jurisdiction ought, in the circumstances, to be exercised so as to ensure the orderly and efficient determination of the issue already placed before the Court.
In Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR the court held:
“Courts need not and should not wait for lawyers and litigants to initiate proceedings where there is substantial reason to believe that the processes of the court have been abused... 30. All courts have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process.[20]The concept of abuse of process extends to the use of the court's processes in a way that is inconsistent with two fundamental requirements arising in Court proceedings...31. The concept of abuse of process overlaps with the obligation of a Court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience.[22]The obligation on a court is to provide a fair trial in accordance with law. The due administration of justice is a continuous process. Courts must be vigilant to ensure that public confidence in the administration of justice is maintained.”
The proper and orderly course is for the Plaintiff's earlier Application dated 03rd July 2026 to be heard and determined. If, upon considering that Application, this Honourable Court finds that the presence of the Intended Interested Party is necessary for the effectual and complete determination of the dispute, the Court remains at liberty to make the appropriate order for joinder.
The Intended Interested Party cannot, by filing a subsequent Application seeking substantially the same relief, circumvent the pending Application or obtain a separate determination of the very issue already before the Court.
Allowing the present Application to proceed independently would therefore serve no useful purpose, would unnecessarily complicate the proceedings and would occasion further delay and expense in a matter which has already been the subject of appellate proceedings and has been remitted by the Supreme Court for rehearing and determination.
In the circumstances, the Defendant respectfully submits that the present Application is duplicative, unnecessary and amounts to an abuse of the process of this Honourable Court, and ought therefore to be dismissed with costs to the Defendant.
In addition to and without prejudice to the foregoing, the Defendant submits that even if the present Application was properly before the Court (and we submit that it is not), the Applicant has fallen short of the legal threshold for being joined as an interested party.
The defendant contends that the Intended Interested Party has not demonstrated a legal basis for joinder. The jurisdiction to join a party is discretionary and must be exercised for the purpose of enabling the Court to effectually and completely determine the controversy before it. It is not a mechanism through which a person may introduce an independent dispute into proceedings which does not arise from the existing pleadings.
The defendant cites the case of Francis Karioki Muruatetu & Another v Republic & 5 Others, Petition Nos. 15 and 16 of 2013 (Consolidated) [2016] eKLR, the Supreme Court set out the principles applicable to joinder as an Interested Party. The intended party must demonstrate, inter alia, that it has an identifiable and proximate interest in the matter, that it stands to suffer prejudice if not joined, and that it has a case or submissions to make whose relevance to the proceedings is demonstrated and which are not merely a replication of the existing parties' case. These principles continue to guide applications for joinder.
The Defendant does not dispute that an easement may constitute an interest in land. The issue, however, is that the alleged easement is not connected to the controversy presently before the Court so as to necessitate the Intended Interested Party's joinder. In the aforestated case the court affirmed:
“Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the Court.”
The defendant argues that in the present case, neither the Plaint nor the Draft Amended Plaint challenges the existence, validity or enforceability of the alleged easement. No declaration is sought concerning the easement. No order for its cancellation, variation or enforcement is sought. Neither is any relief sought against the Intended Interested Party arising from the alleged easement. The dispute before the Court is therefore not a dispute concerning the Intended Interested Party's easement. The Intended Interested Party cannot, with respect, manufacture such a controversy merely by asserting that it has an easement over the suit property.
The Defendant submits that the Court ought to be guided by the pleadings in determining the controversy before it. A party cannot, through an application for joinder, expand the proceedings by introducing an independent cause of action or controversy which is not founded upon the pleadings.
The defendant further argues that the Proposed Joinder Is not Consistent with The Supreme Court's Remittal. The Supreme Court in Freedom Limited v Mbarak [2026] KESC 2 (KLR), Judgment delivered on 23rd January 2026, remitted the matter to this Honourable Court for rehearing and determination on a priority basis. The Supreme Court further directed that, in addressing those questions, this Honourable Court should call for and examine oral and documentary evidence from the relevant public offices.
The Defendant submits that the present proceedings must therefore remain directed towards the determination of the questions arising from the dispute as remitted by the Supreme Court as both the Court and parties are bound by the same.
In the present instance, the Intended Interested Party seeks to introduce a separate issue concerning an alleged easement which has not been challenged by either existing party and which is not the subject of any relief sought in the pleadings.
The Court ought not to permit the proceedings to become a vehicle for determining disputes which are not necessary for answering the questions remitted by the Apex Court.
Analyisis and Determination
As argued by both parties. the statutory foundation for joinder is Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, 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.”
As argued by both parties, the Supreme Court has settled the principles governing joinder of an interested party. In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR (Petition No. 12 of 2013) the Court held:
“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.”
As correctly argued by both parties, these principles were affirmed and elaborated in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR (Petition No. 15 as consolidated with No. 16 of 2013) The Supreme Court stated that an applicant must demonstrate:
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 non-joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii. 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.
Applying the above set criteria, the applicant has in the courts view met the threshold by proving an Identifiable and proximate interest/stake thus having acquired an easement on the property.
As Entry No. 54A, registered on 29th September 1983, is the Caveat by Kenya Pipeline Company Limited claiming the Grant of Easement over the 30-metre corridor of the suit property. This court further finds that the Kenya Pipeline Company PLC's easement is therefore not a peripheral or collateral matter as it forms part of the very issues that this Court has been directed to re-determine.
The applicant's rights of easement are therefore part of the matters requiring determination on remittal.
This court approves the citation of the case of Creekport Limited v National Land Commission; Kahia Transporters Ltd (Intended Interested Party) [2022] KEELC 3357 (KLR) the Environment and Land Court at Mombasa allowed an application by Kahia Transporters Limited to be joined in the proceedings. The intended interested party demonstrated that its proprietary interest in adjoining land was directly affected by the compulsory acquisition and the reliefs sought in the petition. The Court held that joinder was necessary to enable a conclusive and effectual determination of the issues, to avoid the risk of conflicting orders, and to protect the party's identifiable legal interest in the subject matter. The application was allowed and the party was joined.
This court agrees with the applicant that no prejudice will be suffered if the applicant is enjoined, on the contrary, prejudice will be suffered if the applicant is not enjoined because it will be shut out of the priority re-hearing ordered by the Supreme Court. Any final determination of the remitted questions that fails to take account of the original Grant and Caveat risks extinguishing or rendering unenforceable a valid overriding interest and the critical national petroleum pipeline infrastructure constructed pursuant thereto, without the Company having been afforded an opportunity to be heard as argued by the applicant.
The upshot of the above is that the application is allowed and that the Kenya Pipeline company is hereby enjoined as n interested party and is directed to file and serve an affidavit within 5 days. Costs in the suit.
The application before this court by the Kenya Pipeline Company (hereby referred to as the intended Interested Party) is dated 28th August, 2026 seeking orders that the intended interested party be enjoined in the proceeding herein as an interested party. Though the application is not opposed by the plaintiff the same is opposed by the defendant herein vide a replying affidavit sworn by the defendant on 1st September, 2026.
According to the intended interested party the main issue that arises is whether she is entitled to the prayers sought for enjoinder in the proceeding herein as an interested party. The interested party submits that that there are sufficient reasons advanced to persuade the Court to allow the application having met the legal threshold for enjoinder. The interested party submits that the suit property is the parcel of land originally known as Plot No. 287 Section V Mainland North, situate in the Province of Seyidie at S.E. of Mazeras Station, measuring approximately 983 acres and registered as C.R. 6302. That By a Deed of Grant of Easement made in 1975 between the then registered proprietors (Abdul Ghafar Sultanali Chaudhry, Mohamed Jaffer Abdulrasul Panju and Abdul Manan Abdul Rehaman Keher Qureshi) of the one part and Kenya Pipeline Company Limited of the other part, an easement was granted over a strip of land thirty (30) metres in width for the construction, repair, replacement and operation of a petroleum products pipeline and all necessary ancillary apparatus.
The Schedule to the Grant describes the land as Sub-division Number 412 (Original Number 287), measuring approximately 973 acres, registered as C.R. 6302/1. The applicant states that on 29th September 1983 Kenya Pipeline Company Limited presented and registered a Caveat forbidding the registration of any dealing with the land unless expressed to be subject to its claim. The Caveat was registered against C.R. 6302 as Entry No. 54A. Pursuant to the Grant of Easement, Kenya Pipeline Company Limited constructed and has continuously operated critical national petroleum pipeline infrastructure within the 30-metre corridor. The infrastructure forms an integral and strategic component of Kenya's national petroleum transportation network.
The easement is an overriding interest within the meaning of Section 28 of the Land Registration Act, 2012 and is further recognized and protected under Section 149 of the Land Act, 2012. As an overriding interest it binds the suit property irrespective of any subsequent transfer, change of ownership, or determination of title as between the Plaintiff and the Defendant.
In 2015 the Plaintiff applied for an official search in respect of what it claimed was Plot No. 1948 (Original No. 412/20 or 412/10) Section V Mainland North, C.R. 32564. When the search was not forthcoming, the Plaintiff filed High Court Petition No. 58 of 2015. By a decree dated 29th June 2016 the High Court ordered reconstruction of the registry records on the basis of certified copies of the original title documents which the Land Registrar had inspected and confirmed he was satisfied with. Reconstruction was carried out solely on the basis of documents supplied by the Plaintiff.
Armed with the reconstructed register, the Plaintiff instituted the present suit by Plaint dated 28th November 2016 seeking a declaration that the Defendant has no right or interest in the property and a permanent injunction. The Defendant filed a Defence and Counterclaim asserting that his late grandfather, Mbarak Awadh Salim, purchased the entire original parcel (C.R. 6302) in 1978 and that the property had never been subdivided.
The Environment and Land Court delivered judgment on 19th January 2022 in favour of the Plaintiff and dismissed the Counterclaim. The Defendant appealed and on 23rd February 2024 the Court of Appeal which allowed the appeal, set aside the ELC judgment, declared the Plaintiff's title and certificate of title null and void, and held that the estate of Mbarak Awadh Salim is the beneficial owner of the property.
According to the interested party, the Court of Appeal examined the reconstructed register in detail. It observed that the Defendant's version of the Certificate of Ownership contained only the first fourteen entries, while the Plaintiff's version contained fifty-four entries. Entry No. 54A (the Caveat by Kenya Pipeline Company Limited) appeared only on the Plaintiff's expanded version. The Court of Appeal found that reconstruction had been undertaken solely on documents supplied by the Plaintiff, without Gazette Notice and without notice to other interested persons, and that the propriety of the subsequent entries was highly questionable. The Court ultimately nullified the Plaintiff's title founded on that reconstructed register.
The Plaintiff appealed to the Supreme Court and on 23rd January 2026 the Supreme Court in Petition No. E009 of 2024 remitted the matter to this Honourable Court for priority re-hearing and determination of the unresolved questions arising from the Court of Appeal's decision, including questions that directly affect the validity and continuity of the entries on the reconstructed register.
The intended interested party was never a party to the original proceedings in this Court, the Court of Appeal or the Supreme Court. Its original primary documents being the 1975 Grant of Easement and the 1983 Caveat among other critical documents have never been placed before any court and those documents pre-date the reconstruction by decades.
At the hearing of the intended interested party's application, the plaintiff stated that they were not opposed to the application whereas the defendant stated that they were opposed to the application thereafter this honourable court directed that parties proceed to file brief written submissions.
The Defendant's position as discerned from the replying affidavit and submissions is that the Application is misconceived and unnecessary for the determination of the dispute presently before this Honourable Court. The Intended Interested Party seeks to introduce an alleged easement which has not been challenged, placed in issue or made the subject of any relief in either the Plaint or the Draft Amended Plaint. The defendant argues that there is already pending before this Honourable Court an earlier Notice of Motion dated 03rd July 2026, filed by the Plaintiff, which seeks the joinder of the Intended Interested Party to these proceedings. The present Application therefore substantially duplicates an issue already pending determination before this Honourable Court.
The Defendant further submits that the Court is presently seized of a matter which has been remitted to it by the Supreme Court for rehearing and determination within the parameters identified by the Apex Court. The proceedings ought not to be expanded through the introduction of an independent controversy concerning an alleged easement which does not arise from the pleadings or the questions remitted for determination.
The defendant respectfully argues that the pendency of the Plaintiff's earlier Application for joinder renders the present Application duplicative and unnecessary. The Defendant maintains that the issue of joinder of the Intended Interested Party is already before this Honourable Court and is pending determination pursuant to the Plaintiff's Notice of Motion dated 03rd July 2026.
The Intended Interested Party subsequently filed the present Notice of Motion dated 28th August 2026, by which it independently seeks to be joined to the same proceedings. The substantive issue of whether the Intended Interested Party ought to be joined is therefore already pending determination before this Honourable Court. According to the defendant, while the present circumstances do not constitute the conventional application of Section 6 of the Civil Procedure Act in the strict sense of two separate suits between the same parties, the underlying principle of the doctrine of sub judice is directly applicable. A party ought not to invoke the Court's process through a subsequent application seeking determination of an issue which is already pending before the same Court.
There is no utility whatsoever in permitting two separate Applications seeking substantially the same procedural relief namely, the joinder of the Intended Interested Party to proceed concurrently. Doing so would occasion unnecessary duplication of judicial proceedings and resources.
The Court retains an inherent jurisdiction to regulate its proceedings and to prevent its process from being employed in a manner that occasions unnecessary duplication, multiplicity of proceedings or abuse of process. That jurisdiction ought, in the circumstances, to be exercised so as to ensure the orderly and efficient determination of the issue already placed before the Court.
In Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR the court held:
“Courts need not and should not wait for lawyers and litigants to initiate proceedings where there is substantial reason to believe that the processes of the court have been abused... 30. All courts have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process.[20]The concept of abuse of process extends to the use of the court's processes in a way that is inconsistent with two fundamental requirements arising in Court proceedings...31. The concept of abuse of process overlaps with the obligation of a Court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience.[22]The obligation on a court is to provide a fair trial in accordance with law. The due administration of justice is a continuous process. Courts must be vigilant to ensure that public confidence in the administration of justice is maintained.”
The proper and orderly course is for the Plaintiff's earlier Application dated 03rd July 2026 to be heard and determined. If, upon considering that Application, this Honourable Court finds that the presence of the Intended Interested Party is necessary for the effectual and complete determination of the dispute, the Court remains at liberty to make the appropriate order for joinder.
The Intended Interested Party cannot, by filing a subsequent Application seeking substantially the same relief, circumvent the pending Application or obtain a separate determination of the very issue already before the Court.
Allowing the present Application to proceed independently would therefore serve no useful purpose, would unnecessarily complicate the proceedings and would occasion further delay and expense in a matter which has already been the subject of appellate proceedings and has been remitted by the Supreme Court for rehearing and determination.
In the circumstances, the Defendant respectfully submits that the present Application is duplicative, unnecessary and amounts to an abuse of the process of this Honourable Court, and ought therefore to be dismissed with costs to the Defendant.
In addition to and without prejudice to the foregoing, the Defendant submits that even if the present Application was properly before the Court (and we submit that it is not), the Applicant has fallen short of the legal threshold for being joined as an interested party.
The defendant contends that the Intended Interested Party has not demonstrated a legal basis for joinder. The jurisdiction to join a party is discretionary and must be exercised for the purpose of enabling the Court to effectually and completely determine the controversy before it. It is not a mechanism through which a person may introduce an independent dispute into proceedings which does not arise from the existing pleadings.
The defendant cites the case of Francis Karioki Muruatetu & Another v Republic & 5 Others, Petition Nos. 15 and 16 of 2013 (Consolidated) [2016] eKLR, the Supreme Court set out the principles applicable to joinder as an Interested Party. The intended party must demonstrate, inter alia, that it has an identifiable and proximate interest in the matter, that it stands to suffer prejudice if not joined, and that it has a case or submissions to make whose relevance to the proceedings is demonstrated and which are not merely a replication of the existing parties' case. These principles continue to guide applications for joinder.
The Defendant does not dispute that an easement may constitute an interest in land. The issue, however, is that the alleged easement is not connected to the controversy presently before the Court so as to necessitate the Intended Interested Party's joinder. In the aforestated case the court affirmed:
“Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the Court.”
The defendant argues that in the present case, neither the Plaint nor the Draft Amended Plaint challenges the existence, validity or enforceability of the alleged easement. No declaration is sought concerning the easement. No order for its cancellation, variation or enforcement is sought. Neither is any relief sought against the Intended Interested Party arising from the alleged easement. The dispute before the Court is therefore not a dispute concerning the Intended Interested Party's easement. The Intended Interested Party cannot, with respect, manufacture such a controversy merely by asserting that it has an easement over the suit property.
The Defendant submits that the Court ought to be guided by the pleadings in determining the controversy before it. A party cannot, through an application for joinder, expand the proceedings by introducing an independent cause of action or controversy which is not founded upon the pleadings.
The defendant further argues that the Proposed Joinder Is not Consistent with The Supreme Court's Remittal. The Supreme Court in Freedom Limited v Mbarak [2026] KESC 2 (KLR), Judgment delivered on 23rd January 2026, remitted the matter to this Honourable Court for rehearing and determination on a priority basis. The Supreme Court further directed that, in addressing those questions, this Honourable Court should call for and examine oral and documentary evidence from the relevant public offices.
The Defendant submits that the present proceedings must therefore remain directed towards the determination of the questions arising from the dispute as remitted by the Supreme Court as both the Court and parties are bound by the same.
In the present instance, the Intended Interested Party seeks to introduce a separate issue concerning an alleged easement which has not been challenged by either existing party and which is not the subject of any relief sought in the pleadings.
The Court ought not to permit the proceedings to become a vehicle for determining disputes which are not necessary for answering the questions remitted by the Apex Court.
Analyisis and Determination
As argued by both parties. the statutory foundation for joinder is Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, 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.”
As argued by both parties, the Supreme Court has settled the principles governing joinder of an interested party. In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR (Petition No. 12 of 2013) the Court held:
“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.”
As correctly argued by both parties, these principles were affirmed and elaborated in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR (Petition No. 15 as consolidated with No. 16 of 2013) The Supreme Court stated that an applicant must demonstrate:
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 non-joinder must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
iii. 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.
Applying the above set criteria, the applicant has in the courts view met the threshold by proving an Identifiable and proximate interest/stake thus having acquired an easement on the property.
As Entry No. 54A, registered on 29th September 1983, is the Caveat by Kenya Pipeline Company Limited claiming the Grant of Easement over the 30-metre corridor of the suit property. This court further finds that the Kenya Pipeline Company PLC's easement is therefore not a peripheral or collateral matter as it forms part of the very issues that this Court has been directed to re-determine.
The applicant's rights of easement are therefore part of the matters requiring determination on remittal.
This court approves the citation of the case of Creekport Limited v National Land Commission; Kahia Transporters Ltd (Intended Interested Party) [2022] KEELC 3357 (KLR) the Environment and Land Court at Mombasa allowed an application by Kahia Transporters Limited to be joined in the proceedings. The intended interested party demonstrated that its proprietary interest in adjoining land was directly affected by the compulsory acquisition and the reliefs sought in the petition. The Court held that joinder was necessary to enable a conclusive and effectual determination of the issues, to avoid the risk of conflicting orders, and to protect the party's identifiable legal interest in the subject matter. The application was allowed and the party was joined.
This court agrees with the applicant that no prejudice will be suffered if the applicant is enjoined, on the contrary, prejudice will be suffered if the applicant is not enjoined because it will be shut out of the priority re-hearing ordered by the Supreme Court. Any final determination of the remitted questions that fails to take account of the original Grant and Caveat risks extinguishing or rendering unenforceable a valid overriding interest and the critical national petroleum pipeline infrastructure constructed pursuant thereto, without the Company having been afforded an opportunity to be heard as argued by the applicant.
The upshot of the above is that the application is allowed and that the Kenya Pipeline company is hereby enjoined as n interested party and is directed to file and serve an affidavit within 5 days. Costs in the suit.