1. Before the court is the intended interested party Notice of Motion dated 9/10/2025 brought under Order 1 Rule 10, Order 50 Rule 1 of the Civil Procedure Rules, 2010 and Sec 1A, B, 3A of the Civil Procedure Act, seeking an order to enjoin Hanna Nyambura Kungu suing as the Administrator of the Estate of the late John Kungu Njenga as an interested party to the proceedings and leave to respond to the pleadings already filed.
2. The application is premised on the grounds on the face of the motion and supported by an affidavit sworn on the same date by Hanna Nyambura Kungu. Ms. Nyambura averred that she had been made aware by the 1st Respondent who is her brother-in-law that the Applicants in the substantive application Mary Wambui Gitau and Samuel Ngigi Gitau had sought orders for the release of title deed for land parcel number Ndeiya/Makutano/875 comprising of 3 acres registered in the name of Peter Patrick Gitau (deceased) who was her other brother- in- law.
3. She further averred that Peter Patrick Gitau was registered as a proprietor of the suit property in the year 1970 and he was to hold the property in trust for himself and his brother John Kungu Njenga who is her deceased husband. She further stated that the circumstances leading to the creation of the trust was that they both contributed to the purchase of the said property.
4. She further stated that after its purchase, each of the two brothers held 1 and ½ acres each and upon their demise, their beneficiaries have continued to hold the same portions. She averred that the original title was placed in the custody of the 2nd Respondent following a charge on account of a credit facility acquired by the 1st Respondent, who is the older brother to both Peter Patrick Gitau and John Kungu Njenga and that she was aware that at the time the 1st Respondent was acquiring the facility, both brothers consented to the charge.
5. She further averred that a dispute arose in the year 2003, regarding the interests of both brothers in the subject land. A determination was made by the Limuru Land Tribunal that Patrick Gitau was to pay his brother John Njenga an equivalent of the value of 1 and ½ acres. She averred that Peter passed away before fulfilling the Tribunal’s award. She also claimed that Peter’s beneficiaries have not fulfilled the same. She stated that her husband John Njenga passed away before commencing the execution proceedings.
6. She further stated that being the administrator of the estate of the late John Njenga, she filed a suit at Thika ELC E189/2025 seeking to enforce the rights and interests accruing in favour of the estate of Kungu Njenga, her late husband, regarding the suit property. She has prayed to be joined as an interested party in order to prosecute the interests of the estate of her late husband.
7. The Respondents/Applicants in the main suit filed a replying Affidavit opposing the application for joinder where they disposed inter alia; that the they were the beneficiaries of the estate of the late Peter Patrick Gitau who was the absolute sole registered owner of the suit property; that there was never a trust created and entrusted upon them and they denied that the interested party had ever built or developed the suit property as alleged; that they have occupied the said property without any objection from the intended interested party; that there is no documentary evidence on record where the consent of the late Kungu Njenga was sought before charging of the property and that the claim before the court was limited to discharge and release of title and not interest in land which should be dealt with at the Environment and Land Court.
8. Directions were taken directing the parties to file their submissions which were orally highlighted on 22nd July, 2026. The 2nd Respondent did not file any response/submissions.
9. The Applicants through their learned counsel filed submissions dated 16th January, 2026 opposing the joinder of the intended interested party. They argued that the applicants’ cause was for discharge and release of the subject title held by ABSA Bank the 2nd Respondent following settlement of the loan by the 1st Respondent. They contended that the loan was between the late Peter Gitau and the Bank and the interested party is therefore a stranger to the suit. They further contended that they hold grant of letters of Administration and confirmation of grant for the late Peter Gitau which indicate that the subject property was bequeathed to them.
10. They further argued that the intended interested party lacks legal capacity to move the court having not exhibited any grant ad litem or grant of letters of administration. To support their assertion on legal capacity, they cited the case of Grace Mwakira Mugambi v Philip Kimani [2018] eKLR.
11. They further argued that the intended interested party seeks to claim interest in land or an equivalent value which in their view, should be determined elsewhere. They claimed that the application before the court was an order for release of title to the guarantor following the full settlement of a loan.
12. The Applicants further argued that the intended interested party has not demonstrated the elements set out by the Supreme Court in the Francis Muruatetu v Republic & Another (2016), eKLR demonstrating sufficient grounds for joinder, the interest at stake and any prejudice that she would suffer. They argued that the intended interested party had instituted a suit at Thika ELC regarding the interest in the subject land. Reliance was placed in the case of Paul Mwai & Another v John Muiruri (2020) eKLR where the court emphasized that High Court cannot usurp the jurisdiction of ELRC.
Determination
13. I have carefully considered the application and the submissions of the parties. The single issue for determination is whether the applicant has made the threshold to be enjoined as an interested party.
14. The foundational logic of joinder, non-joinder and misjoinder of parties in order 1 of the Civil Procedure Rules, is: (i) to ensure that only the necessary parties are before the court ‘…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’); and ii) to avoid multiplicity of suits.
15. The general rule on joinder of parties is that, all necessary parties should be joined in a suit where feasible. Order 1 rule 10(2) of the Civil Procedure Rules empowers the Court:
“…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.”
16. The Supreme Court elaborately laid out the threshold for consideration of applications by interested parties in Francis Karioki Muruatetu & Another V Republic & 5 Others, Petition No. 15 as consolidated with No. 16 of 2013 (2016) eKLR in the following terms:
“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 non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
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.
iv. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
17. The Supreme Court in Trusted Society of Human Rights Alliance V Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR held that:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
18. In Meme V Republic, [2004] 1 EA 124, the High Court held that a party could be enjoined in a matter for the reasons that:
“i. joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
ii. joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
iii. joinder to prevent a likely course of proliferated litigation.”
19. In analyzing the facts before me against these decisions, it is noteworthy to restate the Supreme Court’s position that “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” and an interested party cannot canvass own cause of action in such a suit/ matter. Further, one of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of a new issue altogether, to be introduced before the Court.
20. In the instant case, the bone of contention is the discharge and release of a title deed held by the 2nd Respondent (ABSA Bank) on an account of a loan facility advanced to the 1st Respondent and guaranteed by Peter Gitau (deceased). The proposed interested party or the late John Kungu Njenga are not registered proprietors. The existence of a trust or interest in the subject property are yet to be determined. This court notes that intended interested party is pursuing the same at the Land and Environment Court E189/2025 - Hanah Kungu v. Mary W. Gitau and Samuel N. Gitau which is the appropriate court to determine land ownership dispute between the parties.
21. The intended interested party will therefore, in my view, not suffer any prejudice if she is not enjoined as a party to this suit. The parties will be at liberty to canvass and ventilate all the attendant issues pertaining to and concerning the ownership of the suit property at the Land and Environment Court and abide by its outcome.
22. Based on the above, the application dated 9th October, 2025 is therefore devoid of merit and is hereby dismissed with costs.
23. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF SEPTEMBER,2026
2. The application is premised on the grounds on the face of the motion and supported by an affidavit sworn on the same date by Hanna Nyambura Kungu. Ms. Nyambura averred that she had been made aware by the 1st Respondent who is her brother-in-law that the Applicants in the substantive application Mary Wambui Gitau and Samuel Ngigi Gitau had sought orders for the release of title deed for land parcel number Ndeiya/Makutano/875 comprising of 3 acres registered in the name of Peter Patrick Gitau (deceased) who was her other brother- in- law.
3. She further averred that Peter Patrick Gitau was registered as a proprietor of the suit property in the year 1970 and he was to hold the property in trust for himself and his brother John Kungu Njenga who is her deceased husband. She further stated that the circumstances leading to the creation of the trust was that they both contributed to the purchase of the said property.
4. She further stated that after its purchase, each of the two brothers held 1 and ½ acres each and upon their demise, their beneficiaries have continued to hold the same portions. She averred that the original title was placed in the custody of the 2nd Respondent following a charge on account of a credit facility acquired by the 1st Respondent, who is the older brother to both Peter Patrick Gitau and John Kungu Njenga and that she was aware that at the time the 1st Respondent was acquiring the facility, both brothers consented to the charge.
5. She further averred that a dispute arose in the year 2003, regarding the interests of both brothers in the subject land. A determination was made by the Limuru Land Tribunal that Patrick Gitau was to pay his brother John Njenga an equivalent of the value of 1 and ½ acres. She averred that Peter passed away before fulfilling the Tribunal’s award. She also claimed that Peter’s beneficiaries have not fulfilled the same. She stated that her husband John Njenga passed away before commencing the execution proceedings.
6. She further stated that being the administrator of the estate of the late John Njenga, she filed a suit at Thika ELC E189/2025 seeking to enforce the rights and interests accruing in favour of the estate of Kungu Njenga, her late husband, regarding the suit property. She has prayed to be joined as an interested party in order to prosecute the interests of the estate of her late husband.
7. The Respondents/Applicants in the main suit filed a replying Affidavit opposing the application for joinder where they disposed inter alia; that the they were the beneficiaries of the estate of the late Peter Patrick Gitau who was the absolute sole registered owner of the suit property; that there was never a trust created and entrusted upon them and they denied that the interested party had ever built or developed the suit property as alleged; that they have occupied the said property without any objection from the intended interested party; that there is no documentary evidence on record where the consent of the late Kungu Njenga was sought before charging of the property and that the claim before the court was limited to discharge and release of title and not interest in land which should be dealt with at the Environment and Land Court.
8. Directions were taken directing the parties to file their submissions which were orally highlighted on 22nd July, 2026. The 2nd Respondent did not file any response/submissions.
9. The Applicants through their learned counsel filed submissions dated 16th January, 2026 opposing the joinder of the intended interested party. They argued that the applicants’ cause was for discharge and release of the subject title held by ABSA Bank the 2nd Respondent following settlement of the loan by the 1st Respondent. They contended that the loan was between the late Peter Gitau and the Bank and the interested party is therefore a stranger to the suit. They further contended that they hold grant of letters of Administration and confirmation of grant for the late Peter Gitau which indicate that the subject property was bequeathed to them.
10. They further argued that the intended interested party lacks legal capacity to move the court having not exhibited any grant ad litem or grant of letters of administration. To support their assertion on legal capacity, they cited the case of Grace Mwakira Mugambi v Philip Kimani [2018] eKLR.
11. They further argued that the intended interested party seeks to claim interest in land or an equivalent value which in their view, should be determined elsewhere. They claimed that the application before the court was an order for release of title to the guarantor following the full settlement of a loan.
12. The Applicants further argued that the intended interested party has not demonstrated the elements set out by the Supreme Court in the Francis Muruatetu v Republic & Another (2016), eKLR demonstrating sufficient grounds for joinder, the interest at stake and any prejudice that she would suffer. They argued that the intended interested party had instituted a suit at Thika ELC regarding the interest in the subject land. Reliance was placed in the case of Paul Mwai & Another v John Muiruri (2020) eKLR where the court emphasized that High Court cannot usurp the jurisdiction of ELRC.
Determination
13. I have carefully considered the application and the submissions of the parties. The single issue for determination is whether the applicant has made the threshold to be enjoined as an interested party.
14. The foundational logic of joinder, non-joinder and misjoinder of parties in order 1 of the Civil Procedure Rules, is: (i) to ensure that only the necessary parties are before the court ‘…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’); and ii) to avoid multiplicity of suits.
15. The general rule on joinder of parties is that, all necessary parties should be joined in a suit where feasible. Order 1 rule 10(2) of the Civil Procedure Rules empowers the Court:
“…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.”
16. The Supreme Court elaborately laid out the threshold for consideration of applications by interested parties in Francis Karioki Muruatetu & Another V Republic & 5 Others, Petition No. 15 as consolidated with No. 16 of 2013 (2016) eKLR in the following terms:
“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 non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
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.
iv. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.”
17. The Supreme Court in Trusted Society of Human Rights Alliance V Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR held that:
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
18. In Meme V Republic, [2004] 1 EA 124, the High Court held that a party could be enjoined in a matter for the reasons that:
“i. joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
ii. joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
iii. joinder to prevent a likely course of proliferated litigation.”
19. In analyzing the facts before me against these decisions, it is noteworthy to restate the Supreme Court’s position that “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” and an interested party cannot canvass own cause of action in such a suit/ matter. Further, one of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the Court. That stake cannot take the form of a new issue altogether, to be introduced before the Court.
20. In the instant case, the bone of contention is the discharge and release of a title deed held by the 2nd Respondent (ABSA Bank) on an account of a loan facility advanced to the 1st Respondent and guaranteed by Peter Gitau (deceased). The proposed interested party or the late John Kungu Njenga are not registered proprietors. The existence of a trust or interest in the subject property are yet to be determined. This court notes that intended interested party is pursuing the same at the Land and Environment Court E189/2025 - Hanah Kungu v. Mary W. Gitau and Samuel N. Gitau which is the appropriate court to determine land ownership dispute between the parties.
21. The intended interested party will therefore, in my view, not suffer any prejudice if she is not enjoined as a party to this suit. The parties will be at liberty to canvass and ventilate all the attendant issues pertaining to and concerning the ownership of the suit property at the Land and Environment Court and abide by its outcome.
22. Based on the above, the application dated 9th October, 2025 is therefore devoid of merit and is hereby dismissed with costs.
23. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF SEPTEMBER,2026