RULING
This ruling is in respect of the Intended Interested Parties Notice of Motion application dated 10th September, 2025 which seeks the following orders:
a. Spent
b. THAT MAURICE MDAHO ODIERO, GILBERT KHAEMBA NAMGENDO, PHOEBE MBAISI IMBUKA & EDWIN KACHERO MUKAA be joined as Interested Parties in this suit herein.
c. Spent
d. THAT Vesting Order dated 9th March, 2018, all consequential orders and proceedings herein to be set aside, varied and/or vacated the. (sic)
e. THAT costs of this application be borne by the Ex-Parte Applicant.
The application is supported by the annexed affidavit of Gilbert Khaemba Namgendo, the 2nd Intended Interested party, sworn on 10th September, 2025. He deponed that since 2001, he has been in continuous, open and uninterrupted occupation and possession of the parcel of land known as Land Plot No MN/I/7778 (C.R 23026) and MN/I/7779 (C.R 23027). It was his deposition that at all material time when the Ex-parte applicant obtained the vesting order on 9th March, 2018, he was still in occupation of the suit premises. He deponed that the Ex-parte applicant obtained vesting orders in respect of the suit properties pursuant to execution of a decree dated 21st August, 2017 issued in Employment and Labour Relations Cause No 67 of 2017.
It was his deposition that he is aware that their advocate on record later wrote to the firm of M.A MWINYI Advocates on 4th September, 2025 seeking to know whether the said firm handled the Employment and Labour Relations Cause No 67 of 2017. He deponed that in an affidavit sworn on 5th September, 2025, he learnt that MA Mwinyi Advocate (Esq) never represented, appeared or had authority to represent and act in Employment and Labour Relations Cause No 67 of 2017.
The 2nd intended interested party further deponed that the vesting order dated 9th March, 2018 was as a result of the consent dated 14th June, 2017 and adopted on 30th June, 2017 which was never signed by M.A Mwinyi Advocates. He deponed that a comparison of the signature on the consent and the signed affidavit are totally different.
It was his deposition that the Respondents in Employment and Labour Relation Cause No 67 of 2017 were never served with the pleadings or hearing notices leading to the now refuted consent judgment dated 30th June, 2017. It was his deposition that this consequently nullifies the subsequent court processes, orders and particularly the vesting order given by this Honourable Court on 9th March, 2018.
He deponed that the impugned vesting order was heavily relied upon in the Judgment dated 24th July, 2025 in Mombasa Environment and Land Cause No E17 of 2023. He deponed that unless the entire vesting order, proceedings and consequential orders are set aside, the Ex-Parte applicant will continue to use the fraudulent, illegal and irregular vesting order to the detriment of the interested party and any other third party.
Nasoro Saidi Suleiman, the Ex-parte Applicant, filed a Replying Affidavit sworn on 2nd October, 2025. He deponed that the Intended interested parties have no locus standi to be enjoined in this suit as the application has been filed by an advocate who is not properly on record.
He deponed that the intended interested parties have concealed to this court that they have lost their claim for adverse possession in ELC Case No E017 of 2023 and that they have an appeal pending in the Court of Appeal. He deponed that this court should not sit on appeal and asked the court to dismiss the application dated 10th September, 2025 with costs.
Gilbert Khaemba Namgendo, the 2nd Intended Interested party, filed a Further Affidavit sworn on 13th October, 2025. He deponed that the interested parties have a direct and identifiable interest in the subject matter of this suit having been in open, peaceful and uninterrupted occupation of the suit properties known as Plot Nos 7778/I/MN and 7779/I/MN for more than twelve (12) years during which period they have constructed permanent worship structures and continuously paid land rates to the County Government of Mombasa as proof of possession and beneficial ownership. It was his deposition that this Court retains jurisdiction to preserve the subject property pending the outcome of the appeal and forensic verification of the impugned documents.
EX-PARTE APPLICANT’S SUBMISSIONS
Ms. Njenga, counsel for the Ex-Parte applicant filed submissions dated 26th January, 2026 and 4th February, 2026. Counsel submitted that the intended interested parties have no vested interest in the suit properties. Counsel submitted that their application for adverse possession was disallowed and they have no locus-standi.
Counsel submitted that the intended interested parties are not entitled to any orders because the issue in respect of the vesting order was canvassed in the judgment delivered on 24th July, 2025 in ELC No E017 of 2023. Counsel submitted that the court cannot sit on appeal of the said judgment. Counsel asked that court to find that the application lacks merit and order the intended interested parties to bear the costs. Reliance was placed on the case of Francis Karioka Muruatetu & another vs Republic & 5 others Petition No 15 Consolidated with No 16 of 2013 (2016) eKLR.
ANALYSIS AND DETERMINATION
The issues for determination are
a. Whether Maurice Mdaho Odiero, Gilbert Khaemba Namgendo, Phoebe Mbaisi Imbuka & Edwin Kachero Mukaa should be joined as Interested Parties in this suit?
b. Who should bear the costs of this application?
The law on joinder of parties is found in Order 1 Rule 10(2) of the Civil Procedure Rules which 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 or settle all questions involved in the suit, be added.”
Black’s Law Dictionary defines an Interested Party as;
“a party who has a recognizable stake (and therefore standing) in the matter.”
In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR, the Supreme Court in defining an interested party stated thus;
“…while an interested party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the Court, having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom. ‘Consequently, 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. On the other hand, an amicus is only interested in the Court making a decision of professional integrity. An amicus has no interest in the decision being made either way, but seeks that it be legal, well informed, and in the interest of justice and the public expectation. As a ‘friend’ of the Court, his [or her] cause is to ensure that a legal and legitimate decision is achieved.”
This court notes that the one ought to be admitted first as a party before seeking substantive orders. The prayer for joinder in such an application ought to be the only substantive issue for determination.
The Supreme court of Kenya in Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR after an analysis of legal provisions and case law set out factors for consideration in an application for joinder as an Interested Party. The Learned Judges held as follows;
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 submission 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.”
In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR the Learned Judge in dealing with the question of an Interested Party seeking to be joined in a suit stated as follows;
“In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party.
…The threshold for joinder of an interested party should not be too low, or else, this is prone to open doors for busybodies to be joined to proceedings, merely to spectate or confuse the issues in the matter. Apart from the above, whether or not to enjoin a person as an interested party, must be looked at within the context and surrounding circumstances of each particular case.”
The Ex-parte applicant moved this court by way of Originating Summons dated 22nd December 2017 seeking the following substantive order:
a. THAT this Honourable Court do issue a vesting order declaring the entire freehold interest (Title No. MN/I/7778) comprising of ALL THAT Piece of land situated at Mombasa County containing by measurement Nought Decimal Nought Two Five Three (0.0253) hectares or thereabout at a purchase price of Kshs 1,500,000/= and Title No MN/I/7779) comprising of ALL THAT Piece of land situated at Mombasa County containing by measurement Nought Decimal Nought Two Seven (0.0277) hectares or thereabout at a purchase price of Kshs 1,500,000/- vested in NASORO SAIDI SULEIMAN of Post Office 93100 Mombasa, Kenya.
The identifiable interest according to the intended interested parties in this case is that they have been in open, peaceful and uninterrupted occupation of the suit properties known as Plot Nos 7778/I/MN and 7779/I/MN for more than twelve (12) years during which period they have constructed permanent worship structures and continuously paid land rates to the County Government of Mombasa as proof of possession and beneficial ownership.
The intended interested parties argue that the vesting order dated 9th March, 2018 was obtained irregularly. This court has looked at the intended interested parties further affidavit sworn on 13th October, 2025 and takes note of annexure marked JV-2 which is a Memorandum of Appeal filed at the Court of Appeal in respect of the judgment and orders of the Hon Y.M Angima (J) made on 24th July, 2025 in Mombasa ELC No E017 of 2023.
It is therefore a fact that an appeal has been filed by the intended interested parties and it would be in the interest of justice for the intended interested parties to ventilate all the issues at the Court of Appeal. I find that the Notice of Motion application dated 10th September, 2025 lacks merit and is hereby dismissed. Costs are awarded to the Ex-parte applicant.
This ruling is in respect of the Intended Interested Parties Notice of Motion application dated 10th September, 2025 which seeks the following orders:
a. Spent
b. THAT MAURICE MDAHO ODIERO, GILBERT KHAEMBA NAMGENDO, PHOEBE MBAISI IMBUKA & EDWIN KACHERO MUKAA be joined as Interested Parties in this suit herein.
c. Spent
d. THAT Vesting Order dated 9th March, 2018, all consequential orders and proceedings herein to be set aside, varied and/or vacated the. (sic)
e. THAT costs of this application be borne by the Ex-Parte Applicant.
The application is supported by the annexed affidavit of Gilbert Khaemba Namgendo, the 2nd Intended Interested party, sworn on 10th September, 2025. He deponed that since 2001, he has been in continuous, open and uninterrupted occupation and possession of the parcel of land known as Land Plot No MN/I/7778 (C.R 23026) and MN/I/7779 (C.R 23027). It was his deposition that at all material time when the Ex-parte applicant obtained the vesting order on 9th March, 2018, he was still in occupation of the suit premises. He deponed that the Ex-parte applicant obtained vesting orders in respect of the suit properties pursuant to execution of a decree dated 21st August, 2017 issued in Employment and Labour Relations Cause No 67 of 2017.
It was his deposition that he is aware that their advocate on record later wrote to the firm of M.A MWINYI Advocates on 4th September, 2025 seeking to know whether the said firm handled the Employment and Labour Relations Cause No 67 of 2017. He deponed that in an affidavit sworn on 5th September, 2025, he learnt that MA Mwinyi Advocate (Esq) never represented, appeared or had authority to represent and act in Employment and Labour Relations Cause No 67 of 2017.
The 2nd intended interested party further deponed that the vesting order dated 9th March, 2018 was as a result of the consent dated 14th June, 2017 and adopted on 30th June, 2017 which was never signed by M.A Mwinyi Advocates. He deponed that a comparison of the signature on the consent and the signed affidavit are totally different.
It was his deposition that the Respondents in Employment and Labour Relation Cause No 67 of 2017 were never served with the pleadings or hearing notices leading to the now refuted consent judgment dated 30th June, 2017. It was his deposition that this consequently nullifies the subsequent court processes, orders and particularly the vesting order given by this Honourable Court on 9th March, 2018.
He deponed that the impugned vesting order was heavily relied upon in the Judgment dated 24th July, 2025 in Mombasa Environment and Land Cause No E17 of 2023. He deponed that unless the entire vesting order, proceedings and consequential orders are set aside, the Ex-Parte applicant will continue to use the fraudulent, illegal and irregular vesting order to the detriment of the interested party and any other third party.
Nasoro Saidi Suleiman, the Ex-parte Applicant, filed a Replying Affidavit sworn on 2nd October, 2025. He deponed that the Intended interested parties have no locus standi to be enjoined in this suit as the application has been filed by an advocate who is not properly on record.
He deponed that the intended interested parties have concealed to this court that they have lost their claim for adverse possession in ELC Case No E017 of 2023 and that they have an appeal pending in the Court of Appeal. He deponed that this court should not sit on appeal and asked the court to dismiss the application dated 10th September, 2025 with costs.
Gilbert Khaemba Namgendo, the 2nd Intended Interested party, filed a Further Affidavit sworn on 13th October, 2025. He deponed that the interested parties have a direct and identifiable interest in the subject matter of this suit having been in open, peaceful and uninterrupted occupation of the suit properties known as Plot Nos 7778/I/MN and 7779/I/MN for more than twelve (12) years during which period they have constructed permanent worship structures and continuously paid land rates to the County Government of Mombasa as proof of possession and beneficial ownership. It was his deposition that this Court retains jurisdiction to preserve the subject property pending the outcome of the appeal and forensic verification of the impugned documents.
EX-PARTE APPLICANT’S SUBMISSIONS
Ms. Njenga, counsel for the Ex-Parte applicant filed submissions dated 26th January, 2026 and 4th February, 2026. Counsel submitted that the intended interested parties have no vested interest in the suit properties. Counsel submitted that their application for adverse possession was disallowed and they have no locus-standi.
Counsel submitted that the intended interested parties are not entitled to any orders because the issue in respect of the vesting order was canvassed in the judgment delivered on 24th July, 2025 in ELC No E017 of 2023. Counsel submitted that the court cannot sit on appeal of the said judgment. Counsel asked that court to find that the application lacks merit and order the intended interested parties to bear the costs. Reliance was placed on the case of Francis Karioka Muruatetu & another vs Republic & 5 others Petition No 15 Consolidated with No 16 of 2013 (2016) eKLR.
ANALYSIS AND DETERMINATION
The issues for determination are
a. Whether Maurice Mdaho Odiero, Gilbert Khaemba Namgendo, Phoebe Mbaisi Imbuka & Edwin Kachero Mukaa should be joined as Interested Parties in this suit?
b. Who should bear the costs of this application?
The law on joinder of parties is found in Order 1 Rule 10(2) of the Civil Procedure Rules which 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 or settle all questions involved in the suit, be added.”
Black’s Law Dictionary defines an Interested Party as;
“a party who has a recognizable stake (and therefore standing) in the matter.”
In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR, the Supreme Court in defining an interested party stated thus;
“…while an interested party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the Court, having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom. ‘Consequently, 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. On the other hand, an amicus is only interested in the Court making a decision of professional integrity. An amicus has no interest in the decision being made either way, but seeks that it be legal, well informed, and in the interest of justice and the public expectation. As a ‘friend’ of the Court, his [or her] cause is to ensure that a legal and legitimate decision is achieved.”
This court notes that the one ought to be admitted first as a party before seeking substantive orders. The prayer for joinder in such an application ought to be the only substantive issue for determination.
The Supreme court of Kenya in Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR after an analysis of legal provisions and case law set out factors for consideration in an application for joinder as an Interested Party. The Learned Judges held as follows;
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 submission 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.”
In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR the Learned Judge in dealing with the question of an Interested Party seeking to be joined in a suit stated as follows;
“In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party.
…The threshold for joinder of an interested party should not be too low, or else, this is prone to open doors for busybodies to be joined to proceedings, merely to spectate or confuse the issues in the matter. Apart from the above, whether or not to enjoin a person as an interested party, must be looked at within the context and surrounding circumstances of each particular case.”
The Ex-parte applicant moved this court by way of Originating Summons dated 22nd December 2017 seeking the following substantive order:
a. THAT this Honourable Court do issue a vesting order declaring the entire freehold interest (Title No. MN/I/7778) comprising of ALL THAT Piece of land situated at Mombasa County containing by measurement Nought Decimal Nought Two Five Three (0.0253) hectares or thereabout at a purchase price of Kshs 1,500,000/= and Title No MN/I/7779) comprising of ALL THAT Piece of land situated at Mombasa County containing by measurement Nought Decimal Nought Two Seven (0.0277) hectares or thereabout at a purchase price of Kshs 1,500,000/- vested in NASORO SAIDI SULEIMAN of Post Office 93100 Mombasa, Kenya.
The identifiable interest according to the intended interested parties in this case is that they have been in open, peaceful and uninterrupted occupation of the suit properties known as Plot Nos 7778/I/MN and 7779/I/MN for more than twelve (12) years during which period they have constructed permanent worship structures and continuously paid land rates to the County Government of Mombasa as proof of possession and beneficial ownership.
The intended interested parties argue that the vesting order dated 9th March, 2018 was obtained irregularly. This court has looked at the intended interested parties further affidavit sworn on 13th October, 2025 and takes note of annexure marked JV-2 which is a Memorandum of Appeal filed at the Court of Appeal in respect of the judgment and orders of the Hon Y.M Angima (J) made on 24th July, 2025 in Mombasa ELC No E017 of 2023.
It is therefore a fact that an appeal has been filed by the intended interested parties and it would be in the interest of justice for the intended interested parties to ventilate all the issues at the Court of Appeal. I find that the Notice of Motion application dated 10th September, 2025 lacks merit and is hereby dismissed. Costs are awarded to the Ex-parte applicant.