NAVEED MOHAMED SHEIKH AND PETER MUSYOKI NGAU AND 13 Others VS ELEGANT HOLDINGS LIMITED AND GROUP FIVE HOLDINGS LIMITED AND 1 Others

1. The Honourable Court was called upon to determine the Chamber Summons application dated 5th March, 2025 filed by Kikora Limited, the Intended Interested Party/Applicant herein. It was brought under the provisions of Order 1 Rule 10 (2) and 25 of the Civil Procedure Rules, 2010 and all other enabling provisions of law.

2. Further, the Honourable Court was also urged to make a determination unto the Notice of Motion application dated 5th June, 2025 by Naveed Mohamed Sheikh, Peter Musyoki Mgau, Sonil Holdings Limited, William Oweke Agingu, Nargis Sefuddin Mossajee, Seifuddin Badrudin Jivanjee, Firdos Din, Tamana Khan, Dorcas Kisiero, Peter Estorp, Kjell Eric Lintho, Sissel Margare Lintho, Malkit Singh Riyat, Pauling Kariuki, Peter Ndenderoh, Shebeena Habibulla Hampoz, Frank Kamunde Mwongera, Judy Muthoni Mwaura, Mary Nduta Kimemia and Margaret Mbulwa Ngau, some of the Plaintiffs herein.

3. Upon service of the said applications, the 1st Defendant opposed them through filing of a replying affidavit sworn by Amjad Rahim Abdul. At the same time, a section of the Plaintiffs opposed the Chamber Summons application through filing grounds of opposition and a Preliminary objection dated 10th April, 2025.

4. Eventually, and by consensus of the parties, the parties canvassed the applications by way of written submissions. The Honourable Court shall deal with all these pleadings simultaneously but distinctly on their own merit in this Omnibus Ruling.

5. The Applicant sought the following orders: -

6. The application was premised on the grounds, facts and testimony on the face of the application and further supported by the 22 Paragraphed annexed affidavit of AJAY KOTECHA, a director of the Applicant/Intended Interested Party herein together with annextures marked as “AK” annexed hereto. The Affiant averred that:-

a) They had filed this instant application seeking the Honourable Court’s intervention to mitigate against patent prejudice visited on the Applicant from the unmerited claim brought by the Plaintiffs, threatening the Applicant’s lawful property rights.

b) The Plaintiffs herein, filed the instant suit against the Defendants being “ELC case no. E018 of 2023 – Naveed Sheikh & 17 others – Versus – Elegant Holding Limited & others”, alleging in the main unlawful interference with shared amenities such as hotel, swimming pool, fitness centre and common areas.

c) The Plaintiff alleged that some of the foregoing amenities were supposed to be developed on LR. Nos. 31283/1 and 31283/3, but for the actions of the Defendants, impeding their availability and use.

d) The provision of Article 40 of the Constitution entrenches the Applicant’s right to acquire and own property, of any description and in any part of Kenya. It was in exercise of this lawful right that the Applicant entered into valid and legally binding sale agreements with Elegant Holdings Limited (sued and named as the ‘1st Defendant’, in respect of portion of land measuring approximately 4.6 acres from the larger subdivision of land parcel LR No. 31283/1 all measuring 7.3 acres, which agreements dated 23rd February, 2023, duly stamped and registered. Annexed and marked as “AK – 2” in the affidavit was a copy of the sale agreement dated 23rd February, 2023.

e) Indeed, in the course of performance of the obligations accruing under the subject agreements over a portion of land parcel LR No. 31283/1 measuring approximately 4.6 acres; the Applicant lawfully continued to hold the original ‘mother’ title to LR No. 31283/1 measuring 7.3 acres as security, underscoring their legitimate interest over this parcel of land. Annexed and marked as “AK – 3” was a copy of the mother title to LR No. 31283/1 measuring 7.3 acres).

f) Whereas the Applicant lawfully acquired property interest in a portion of land parcel LR No. 31283/1, it had since learnt of the unmerited claim lodged by the Plaintiffs touching on inter alia disputations over proprietorship over land parcel LR No. 31283/1 in these ongoing proceedings before the Honourable Court.

g) The Applicant lawfully and bona fide acquired a portion of land parcel LR No. 31283/1 measuring 4.6 acres, for valuable consideration, free of any encumbrances or claim howsoever, and the Plaintiff’s do not have any legitimate claim over the portion of land parcel LR No. 31283/1 measuring 4.6 acres, owned by the Applicant.

h) Indubitably, the outcome and/ or determination over the pending claim before the Honourable Court, howsoever would certainly impact and/ or affect the Applicant’s proprietary interest in the portion of land parcel LR. No. 31283/1 measuring approximately 4.6 acres lawfully owned by the Applicant. Establishing a legitimate stake in the instant proceedings warranting joinder.

i) Indeed as advised by their Counsel on record, which advice they believed to be true and accurate, the Hon. Mativo J (as he then was) in the case of:- “Kenya Medical Laboratory Technicians  and Technologists Board & 6 Others – Versus – Attorney General & 4 Others [2017] eKLR”, held that, “in determining whether or not an applicant had a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the Applicant’s rights, but rather in what would be the result on the subject matter of the action if those rights could be established.”

j) Indeed under further advice of their counsel, who advised that they believed to be true and accurate that the provision of Article 27 (1) of the Constitution regards the Applicant as equal before the law and had the right to equal protection and equal benefit of the law. Article 50 (1) of the Constitution on its part entrenches the Applicant’s right to have any dispute that can be resolved by the Application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.

k) In invoking these fundamental rights as applied and operationalized by the Supreme Court of Kenya (SCoRK) in “Trusted Society of Human Rights Alliance – Versus – Mumo Matemu & 5 Others [2014] eKLR”, on the further advice of their counsel, the Applicant sought joinder in these proceedings to enable it assert and defend its lawful proprietary interest accruing in the portion of land parcel LR No. 31283/1 measuring approximately 4.6 acres.

l) Only the Applicant could best advance its lawful interest particularized through establishing its lawful entitlement over the subject property. Its presence before the Honourable Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit more particularly touching on the proprietorship over land parcel LR No. 31283/1.

m) The Applicant observed that in  the case of:- “JMK – Versus – MWM & Another [2015] eKLR” the Court of Appeal emphasized that a party whose legal rights may be affected by a decision – as will the Applicant herein – should be granted an opportunity to be heard before any adverse orders are made.

n) No plausible prejudiced could be visited on the Respondent from the joinder of the Applicant, as infact the Applicant had since learnt of the subsistence of injunctive relief issued by the Honourable Court to preserve the substratum of the suit. Conversely however should the matter proceed in the absence of the Applicant, there was a real and substantial risk that irreversible decisions may be made affecting their legal and financial interests, without the Applicant being heard or participating – inimical to the court inimical to the cause of justice.

o) It was most urgent that this Application be determined in priority to any other proceedings in this matter, and appropriate direction taken to enable to the Applicant’s effective participation in the proceedings herein after its joinder, to prevent grave injustice and irreparable harm.

p) In light of the above the Affidavit was sworn in support of the Application filed herein and the Affiant prayed for the same to be allowed as prayed.

7. The 1st, 3rd, 4th, 5th, 6th, 7th, 8th , 13th and 19th Plaintiffs opposed the Chamber Summons Application dated 5th March, 2025 through a three (3) paragraphed Preliminary Objection dated 10th April, 2025. The objection was on the following  grounds: -

a. The Intended Interested Party/ Applicant has no locus standi to file the subject application and obtain the orders sought for therein.

b. The 1st Defendant/ Respondent has admitted in its defence dated 10th January, 2024 at paragraph 3 therein of its proprietorship on L.R. No. 31283/1 hence the presence of the Intended Interested Party/ Applicant is not necessary for a fair just resolution of the instant suit.

c. The intended Interested Party/ Applicant has not met the threshold required to satisfy the Honourable Court for a grant of the orders sought for herein.

8. The 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 13th, 14th, 15th, 16th, 17th, 18th and 19th Plaintiffs opposed the Chamber Summons application dated 5th March, 2025 by the Intended Interested Party on the following grounds: -

i. While the Intended Interested Party/ Applicant stated that it had a proprietary interest in the property L.R. No. 31283/1, there is no evidence of such ownership in accordance with Sections 24 and 26 of the Land Registration Act No. 3 of 2012.

ii. In any event, any transfer of the said suit property after the 19th October, 2023 would had been in contravention of the Court’s orders as directed by the Hon. Lady Justice A. Dena in the ruling of the said date.

iii. A sale agreement never conferred any rights of ownership of land as such an attempt to exercise any proprietary rights anchored on the same was unprocedural and could not be maintained.

iv. The 1st Defendant/ Respondent who was and still is the registered proprietor of the said property was party to these proceedings and had filed a defence, with supporting documents hence the interest of the registered proprietor of the said property stands protected.

v. The fact that the Intended Interested Party/ Applicant had applied to be joined in these proceedings this late in the day, was express confirmation that it only intended to delay the hearing of the matter.

vi. With all parties having complied with pre – trial directions, the Intended Interested Party/ Applicant had not laid a basis for why it delayed in making this application.

vii. In view of the above, Intended Interested Party/ Applicant was neither a necessary nor proper party to these proceedings.

9. The 2nd Plaintiff, PETER MUSYOKI NGAU responded to the Application through a 14th paragraphed Replying Affidavit sworn on 5th June, 2025 on his behalf and that of the 9th, 10th, 11th, 12th and 20th Plaintiffs where the Deponent averred that: -

a. The Plaintiffs filed this suit ‘inter alia’ seeking to stop the sale of various subdivisions of the parent suit property LR No. 31283 (formerly known as LR. No. 12829) by the 1st Defendant on which was constructed beachfront apartments and various amenities, collectively known as Golden Sand Resort, located in Diana Beach, that the 1st Defendant sold to the Plaintiffs in the format of long term leases.

b. The Plaintiffs further filed this suit seeking to stop the destruction of various structures and amenities  currently constructed on the sub - divisions by the Defendants.

c. Kikora Limited filed an Application seeking to be enjoined as an “Interested Party” to this suit, dated 5th March, 2025 stating it entered into a transaction with the 1st Defendant to acquire title subdivisions of the suit property known as LR. No. 31283/1.

d. Kikora Limited alleged an absolute property rights in regard to the sub - division which includes a right to destroy the very amenities that the Plaintiffs sought to protect.

e. Kikora Limited had filed a survey plan omitting structures which were located in LR. No. 31283/1 and purporting to further sub - divide the sub - division LR. No. 31283/1 into smaller lots allegedly for further sale or development in that format.

f. Kikora Limited and its alleged transaction with the 1st Defendant was previously unknown to the Plaintiff prior to the Plaintiff’s being served with the Applicant filed by Kikora Limited.

g. The statement of Defence of the 1st Defendant never  mentioned this alleged transaction between the 1st Defendant and Kikora Limited and the Plaintiffs had no other way of finding out about the transaction. The 1st Defendant had clearly approached this Court with unclean hands.

h. The Plaintiffs upon reading the sworn supporting affidavit of Ajay Kotecha dated 5th March, 2025 and further investigation of the alleged transaction between the 1st Defendant and Kikora Limited to transfer the title of sub division LR. No. 31283/1 from the 1st Defendant to Kikora Limited believed that this transaction was improper, unprocedural, fraudulent in that:-

i. The alleged transactions related to a subdivision of the mother title that houses various amenities which the 1st Defendant knew were part of the development and was necessary for occupation of the Apartments, and further necessary to ensure compliance issued to the 1st Defendant.

ii. The alleged transaction between the 1st Defendant and Kikora Limited was illegal because the 1st Defendant lacked a legal right to sell the subdivision which the Plaintiffs had already paid valuable consideration for use of the amenities houses in the sub - division;

iii. The 1st Defendant knew that the lease of the mother title LR. No. 31283 from the County Government of Kwale required that the 1st Defendant obtained the consent of the County Government of Kwale or National Government prior to transfer of any subdivision of the parent property to other parties, something that the Plaintiffs believe that the 1st Defendant never complied with.

i. The Plaintiffs believed that Kikora Limited colluded with the 1st Defendant in a plan to have the title of sub - division LR No. 31283/1 of the suit property transferred from the 1st Defendant to Kikora Limited or held Kikora Limited in an attempt to defeat justice whereby the 1st Defendant might claim that it no longer held the said title.

j. The Plaintiffs believed they had valid causes of action against Kikora Limited as enumerated on the further amend the Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs annexed in the affidavit and marked as “P – 1”.

k. The Plaintiffs sought an order for leave to file the further amended plaint of the 9th, 10th, 11th, 12th and 20th Defendant, file a supplementary list of documents and file a further witness statement of Peter Ngau.

10. The Applicants sought the following orders: -

11. The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 18th paragraphed annexed affidavit of PETER MUYOKI NGAU, the 2nd Plaintiff herein swearing the affidavit on behalf of himself and that of the 9th, 10th, 11th, 12th and 20th Plaintiffs. The Affiant averred that:-

a. The Plaintiffs filed this suit inter alia seeking to stop the sale of various sub - divisions of the Parent suit property LR. No. 31283 (formerly known as LR. No. 12829) by the 1st Defendant on which was constructed beachfront apartment and various amenities, collectively known as Golden Sand Resort, located in Diani Beach, that the 1st Defendant sold to the Plaintiffs in the format of long term leases.

b. The Plaintiffs further filed this suit seeking to stop the destruction of various structures and amenities currently constructed on the subdivisions by the Defendants.

c. Kikora Limited filed an Application seeking to be enjoined as an “interested party” to this suit dated 5th March, 2025, stating it entered into a transaction with the 1st Defendant to acquire title subdivisions of the suit property known as LR. No. 31283/1.

d. Kikora Limited alleged it had the title of the subdivision in its possession and further claimed that by virtue of a sale agreement with the 1st Defendant that it was now the holder of the title of the subdivision of the suit property known as  LR. No. 31283/1.

e. Kikora Limited and its alleged transaction with the 1st Defendant was previously unknown to the Plaintiffs prior to the Plaintiffs being served with the Application filed by Kikora Limited.

f. The statement of Defence of the 1st Defendant did not mention this alleged transaction between the 1st Defendant and Kikora Limited and the Plaintiff had no other way of finding out about the transaction. The 1st Defendant had clearly approached this court with unclean hands.

g. The Plaintiffs upon reading the sworn supporting affidavit of Ajay Kotecha dated 5th March, 2025 and further investigation of the alleged transaction between the 1st Defendant and Kikora Limited to transfer of the title of sub - division LR. No. 31283/1 from the 1st Defendant to Kikora Limited believe that this transaction was improper, unprocedural, fraudulent in that:

i. The alleged transactions related to a subdivision of the mother title that houses various amenities which the 1st Defendant knew were part of the development and were necessary for occupation of the Apartments and further necessary to ensure compliance with the development approval, NEMA license and occupation certificate issued to the 1st Defendant;

ii. The alleged transaction between the 1st Defendant and Kikora Limited was illegal because the 1st Defendant lacked a legal right to sell the sub - division which the Plaintiff had already paid valuable consideration for use of the amenities houses in the sub - division;

iii. The 1st Defendant knew that the lease of the mother title LR. No. 31283 from the County Government of Kwale or National Government prior to the transfer of any sub - division of the parent property to other parties, something that the Plaintiffs believed that the 1st Defendant did not comply with.

h. The Plaintiffs believed that Kikora Limited colluded with the 1st Defendant in a plan to have the title of sub - division LR. No. 31283/1 of the suit property transferred from the 1st Defendant to Kikora Limited or held by Kikora Limited in an attempt to defeat justice whereby the 1st Defendant might claim that it no longer held the said title.

i. When in early year 2023 the Plaintiffs learned that the 1st Defendant was engaged in efforts to sell off portions of the suit properties, the Plaintiffs lodged Cautions dated 7th January, 2023 against title LR. No. 31283/1 and No. 31283/3 at Mombasa Land Registry. The then Register of Title in Mombasa J.M. Rama, who was the proposed 7th Defendant, working for the 4th Defendant, failed to attend to the Cautions lodged by the Plaintiffs immediately upon receipt.

j. In or around 1st March, 2023, the Plaintiffs conducted a postal title search at the Land Registry Offices in Mombasa and learned that:

i). The 7th Defendant had registered the caution filed 17th January, 2023 by the Plaintiffs in regard to the title LR. No. 31283/1 on 19th January, 2023.

ii). The 7th Defendant had failed to process the Caution filed 17th January, 2023 by the Plaintiffs in regards to the title of LR. No. 31283/1 and that the 7th Defendant had transferred LR. No. 31283/3, to the 2nd Defendant with no encumbrances listed.

k. The Plaintiffs believed that the 1st, 2nd, 4th and 7th Defendants colluded in purporting to register the transfer of LR. No. 31283/3 from the 1st Defendant to the 2nd Defendant on 19th January, 2023 without all documents necessary for a proper lawful land conveyancing, including, but not limited to registration without a properly dated and signed sale agreement by all parties, proof of payment of valuable consideration, proof of proper valuation of the land by a qualified land valuer, proof payment of stamp duty and proof of consent from the County Government if Kenya or the National Government of Kenya, which constituted misfeasance in public office.

l. In or around 30th May, 2025, the Plaintiffs conducted another postal title search at the Land Registry Offices in Mombasa and learnt that the 7th Defendant and other unknown employees of the 4th Defendant had plucked multiple documents from the land parcel files for plot LR. No. 31283/1, 31283/2 and 31283/3 without justification and apparently to frustrate the Plaintiff’s quest for justice.

m. The 4th Defendant, a subsection of the Ministry of Lands, Housing & Urban Development, which was the employer of the 7th Defendant can be held vicariously liable for the actions of its officers, employees and agents.

n. The Plaintiffs believed that they had valid causes of action against the proposed 6th and 7th Defendants as enumerated on the further amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs annexed hereto and marked as “P – 1”.

o. The Plaintiffs sought an order for leave to file the further amended Plaint of the 9th, 10th, 11th, 12th and 20th Defendant, filed a supplementary list of documents and filed a further witness statement of Peter Ngau.

12. On 10th June, 2025 while all the Parties were present in Court, they were directed to have the Chamber Summons Application dated 5th March, 2025 and Notice of Motion application dated 5th June, 2025 be disposed of by way of written submissions and all the parties complied. Pursuant to that all the parties obliged and a ruling date was reserved for 30th June, 2025. However, due to unavoidable circumstances, the Ruling was eventually delivered on 27th October, 2025 by Court accordingly

13. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs filed their written submissions through the Law firm of Messrs. Mwangi Kihira & Company dated 26th June, 2025. Mr. Kihira Advocate commenced the submissions by stating that on 5th March, 2025, Kikora Limited filed an Application seeking to be enjoined to the proceedings as the Interested Party. The said application was premised on the grounds that: -

14. In the Certificate of Urgency attached to its Application to be Interested Party, Kikora Limited stated:

15. The supporting documents annexed to Kikora Limited’s Application showed that 1st Defendant, Elegant Holdings Limited was in the process of further subdividing a portion of the suit property known as LR. No. 31283/1 and had entered into a land sale agreement with Kikora Limited dated 23rd February 2023 to transfer title to Kikora Limited 4 proposed sub - divisions of the suit property. The Application filed by Kikora Limited further stated that the Applicant “seeks joinder in these proceedings to enable it assert and defend its lawful proprietary interest accruing in the portion of Land Parcel LR. No. 31283/1 measuring approximately 4.6 acres”.

16. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs agree that Kikora Limited should “assert and defend” its alleged proprietary interest, but based on the provisions of the Civil Procedure Rules, Kikora Limited ought to have sought joinder as a Defendant, not as “an Interested Party”. In this regard therefore, the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs:

a. Filed a Replying affidavit dated 5th June 2025 opposing the joinder or Kikora Limited as an Interested Party.

b. Filed a corresponding Countermotion seeking joinder of Kikora Limited as the 6th Defendant and J.M Rama (TA Land Register Mombasa District Registry) and annexed the following documents.

(i) A Further Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs;

(ii) Supplementary Witness Statement of Peter Musyoki Ngau and

(iii) Supplementary document list of these Plaintiffs.

17. According to the Learned Counsel, the countermotion of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs sought orders that moved the Court for ORDERS:

18. The Learned Counsel submitted that the grounds for the Countermotion were that: -

i. Kikora Limited had filed an Application dated 5th March 2025 seeking to be enjoined as an “interested party” to the suit.

ii. In its Application, Kikora Limited stated that the 1st  Defendant was in the process of further subdividing a portion of the suit property known as LR. No. 31283/1 and that it had entered into a transaction with the 1st Defendant dated 23rd February 2023 to acquire title to four proposed subdivisions of the suit property.

iii. In paragraph 3 of the Certificate of Urgency and Paragraphs 3 and 4 of the Supporting Affidavit, Kikora Limited took a stand on the Plaintiffs’ suit, terming it unmerited and underscoring its title as legitimate.

iv. The Plaintiffs submitted that:

(a) The claim of an interest in sub - division LR. No. 31283/1 by Kikora Ltd was adverse to the Plaintiffs, because they claimed an equitable interest in the same sub - division in regard to amenities constructed therein by virtue of earlier transactions between the 1st Defendant and the Plaintiffs in the form of Agreements to Lease apartments in the development.

(b) The Plaintiffs believed that the transfer or planned transfer of the sub - division from the 1st Defendant to Kikora Limited was improper, unprocedural and fraudulent, and as such Kikora Limited did not have a valid legal or equitable right, claim, or interest in the suit property or any of its subdivisions.

(c) The Plaintiffs believed that Kikora Limited colluded with the 1st Defendant in a plan to have the title of subdivision LR. No. 31283/1 of the suit property transferred to Kikora Limited or held by Kikora Limited in an attempt to defeat justice, whereby the 1st Defendant might have claimed that it no longer held the said title.

v. As the Plaintiffs had viable causes of action against Kikora Limited, they filed the instant application to have Kikora Limited enjoined as the 6th Defendant to enable the fair and orderly determination of the real questions in controversy between the parties.

vi. Further, the Plaintiffs believed that J.M. Rama, the then Registrar of Titles in Mombasa in or around year 2023, colluded with the 1st and 2nd Defendants in a plan to have the title of subdivision LR. No. 31283/3 of the suit property transferred from the 1st Defendant to the 2nd Defendant in or around 19th January 2023.

vii. The Plaintiffs intended to, among other things, challenge the sales of any portion of LR. 31283 (formerly LR. 12829) to the 2nd Defendant and proposed 6th Defendant (Kikora Limited) and ask for orders to have the purported sales nullified.

viii. Civil Procedure Order 1 Rule 10 (2) empowered the Court to enjoin a party as a Defendant upon application by any party in the suit.

ix. It was in the interest of justice that the Court granted the orders as prayed.

19. The Learned Counsel asserted that in the Further Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs (dated 5th June 2025 and filed 9th June 2025), these Plaintiffs added facts previously unknown to them until Kikora filed its motion, inter alia, the following:

a. That the 1st Defendant lacked a right to further sub - divide LR. No. 31283/1 and transfer portions thereafter to Kikora Limited, as the Plaintiffs had pre-existing property rights to use and enjoy the amenities constructed there and to receive reversionary interest registered in their favour.

b. That the purported sale or transfer of any sub - division of the subject land from the 1st Defendant to Kikora Limited was tainted with fraud and impropriety, such that Kikora Limited did not go through the proper lawful process to acquire an interest in any portion of the subject land.

c. That the Plaintiffs had lodged cautions at the Land Registry Offices in Mombasa on 17th January 2023. That the proposed 7th Defendant, J.M. Rama, who was an employee of the 4th Defendant, delayed to attend to or ignored the cautions lodged by the Plaintiffs. The caution for sub - division LR. No. 31283/1 was registered on 17th January 2023 as per the Certificate of Search issued by J.M. Rama dated 20th January 2023. The caution for sub - division LR. No. 31283/3 was never registered, and no official explanation was provided by the proposed 7th Defendant J.M. Rama or the 4th Defendant.

d. That in or around the year 2025, the Plaintiffs attempted to conduct a title search on the titles of the subject property and learned that the parcel files for LR. No. 31283/1 and LR. No. 31283/2 and multiple documents were missing, misplaced, or improperly locked away, undermining the property rights of the Plaintiffs.

20. The 1st, 3rd, 4th, 5th, 6th, 7th, 8th, and 13th to 19th Plaintiffs filed a Preliminary Objection dated 10th April 2025 (hereinafter “the Subject Preliminary Objection”) which sought to block the joinder of Kikora Limited on the following grounds:

a. That the Intended Interested Party/Applicant has no locus standi to file the subject application and obtain the orders sought therein.

b. That the 1st Defendant/Respondent has admitted in its Defence dated 10th January, 2024 at paragraph 3 therein its proprietorship of L.R. No. 31283/1, hence the presence of the Intended Interested Party/Applicant was not necessary for a fair and just result of the instant suit.

c. That the Intended Interested Party/Applicant had not met the threshold required to satisfy the Honourable Court for a grant of the orders sought therein.

21. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs opposed the Subject Preliminary Objection and prayed that this Honourable Court dismissed it, as it failed to restrict itself purely to issues of clearly settled law. The issues raised in the Preliminary Objection required ascertainment of facts and judicial discretion.

22. On part II of the Legal Arguments on joinder of parties, the Learned Counsel submitted that the Civil Procedure Rules empowered the Court to facilitate the administration of justice in a manner that was just, fair, and orderly, for the purposes of determining the real questions in controversy between the parties. In regard to the joinder of parties once a suit had been initiated by a Plaint, the Civil Procedure Rules, under Order 1 Rule 10 (2) and 10 (4) provided as follows:

23. The Learned Counsel opined that Kikora Limited claimed an interest in the subject property, and it was patent that the interest claimed by Kikora Limited was adverse to the Plaintiffs’ interest. To enjoin Kikora Limited, the Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs filed on 14th December, 2023 needed to be amended to put forward their claim against Kikora Limited based on newly discovered facts, including but not limited to:

a. That these Plaintiffs held property rights in all three sub - divisions to use and enjoy the amenities constructed on the subject property, which were pre‑existing to the rights allegedly claimed by Kikora Limited, on the basis of representations made by the 1st and 5th Defendants to entice the Plaintiffs to enter into Agreements to Lease apartments and to pay monies “subject to contract.”

b. That these Plaintiffs claimed reversionary interest rights to all common areas, which had been promised in the format of shares in the 3rd Defendant, which the 1st and 5th Defendants were to register and thereafter surrender title of all three sub - divisions to the 3rd Defendant.

c. That the Sectional Properties Act of 2020 required the 1st Defendant to convert the reversionary interest of the Plaintiffs into Sectional Leases registered by the 4th Defendant, and the deadline for the 1st Defendant to have done so was 31st December, 2022, which preceded the Agreement between the 1st Defendant and Kikora Limited.

d. That the sub - division and transfer of the subject land by the 1st Defendant to Kikora Limited was illegal and alienated the Plaintiffs’ rights.

e. That the use of the title of any subdivision of the subject property by the 1st Defendant as security in a transaction with Kikora Limited alienated the Plaintiffs’ rights.

24. The Learned Counsel posited that the provision of Order 1, Rule 3 of the Civil Procedure Rules, 2010, provided a description of who could be joined as Defendants. Order 1, Rules 4 and 5 of the Civil Procedure Rules, 2010, provided for the liability of Defendants, stating that Judgment could be given for or against one or more joint parties, and that it was not necessary for every defendant to be interested in all the relief claimed.

25. Based on these provisions, it was the contention by the  Learned Counsel that Kikora Limited ought to have been added as a Defendant. Moreover, Kikora Limited stated in its application seeking joinder as an Interested Party that it sought to “assert and defend its alleged proprietary interest,” hence indicating that the role it intended to play upon joinder was that of a Defendant, but instead it deviated and sought joinder as an Interested Party.

26. In the Certificate of Urgency annexed to the Notice of Motion to application to be joined as an Interested Party, Kikora Limited stated:

27. The Learned Counsel submitted that Article 26 (1)(b) of the Land Registration Act, No. 3 of 2012 and Article 40 (6) of the Constitution of Kenya, 2010 specified that title to land acquired by fraud or unprocedural means could not be held to be lawful and had to be voided. In this regard, the Plaintiffs sought to demonstrate, via clear evidence, that the interest claimed by Kikora Limited ought to have been voided and that the 1st Defendant had improperly applied the title of LR No. 31283/1 as security to Kikora Limited. Kikora Limited stated that it would rely on the provision of Article 40 and on the Supreme Court of Kenya decisions in “Trust Society of Human Rights Alliance – Versus - Mumo Matemu & 5 Others [2014] eKLR” and “Francis Karioki Muruatetu & Another – Versus -  Republic & 5 Others [2016] eKLR” to assert its right to be added as an Interested Party. The term “interested party” was used in common law as a catch‑all phrase to denote a party seeking joinder to proceedings whose presence in the proceedings was necessary.

28. The Learned Counsel made reference to the case of “Petition No. 14 of 2014, Communications Commission of Kenya & 3 Others – Versus - Royal Media Services Ltd & 7 Others”, the Supreme Court adopted favorably the description of an “interested party” as one who has a stake in the matter before the court and further underscored that an interested party needs to be able to champion his or her cause, stating:

29. The Learned Counsel relied on the case of “Civil Suit No. 20 of 2019, Sarah Jepwambok – Versus -  Kibiwott Chepkuto; Geoffrey Kiprotich Chemweno (Interested Party) [2021] eKLR”, the Court added at paragraph 19: -

30. According to the Learned Counsel, to promote fair and efficient administration of justice, courts noted that any party claiming to be an Interested Party and seeking joinder to proceedings had to be evaluated based on guiding principles to ensure joinder facilitated rather than impeded justice. To buttress of that point, the Counsel relied on the case of:- “ELC Case No. 210 of 2017, Local Authorities Provident Fund (LAPFUND) – Versus - Daniel Kasirimo ole Muyaa [2018] eKLR”, the Court outlined guiding principles for enjoining a party:

31. The Learned Counsel submitted that both Kikora Limited (proposed 6th Defendant) and J.M. Rama (proposed 7th Defendant) met the standard under the provision of Order 1 Rule 10 (2) that their “presence was necessary in order to effectually and completely adjudicate upon and settle all the questions in the suit” as they were actors in a series of related transactions which the Plaintiffs alleged had caused them damages.

32. Thus, in regards to Kikora Limited, the Learned Counsel averred that: -

a. Kikora Limited was a necessary party because it had claimed a stake in the subject property after having entered into a sale agreement with the 1st Defendant, paid a deposit and taken the title of the subject property as security pending the completion of that agreement Kikora Limited had termed the Plaintiffs claim to the suit property as meritless and will be seeking that the Court to grant the 1st Defendant’s title to the suit property upon which it would complete the transaction it entered with the 1st Defendant. For the Court to grant title of the suit property to the 1st Defendant, the ultimate court decree must address the apparent interest claimed by the Plaintiffs via their Agreements to lease with 1st Defendant and find that the interest of the Plaintiff was negated, thereby giving the 1st Defendant clear title, free of any future claims of an interest by the Plaintiffs. Alternatively the Court must find that the agreement between the 1st Defendant and Kikora Limited is unlawful and void and give the Plaintiffs rights to use and enjoy the property free of any future interference by the 1st Defendant and Kikora Limited.

b. It was a “proper party” as it was a valid legal entity which had staked a competing claim to the subject property competing with the Plaintiffs claim;

c. Kikora Limited meets the criteria to be added as a Defendant because relief flowed from the proposed Defendant to the Plaintiff when the Kikora Limited’s claimed interest in the suit property was quieted by the ultimate decree of the Court and the Court awards monetary damages for infringement on the Plaintiffs’ property rights and the restoration of the property to functional status as it was when advertised and sold to the Plaintiffs.

d. The ultimate decree of this Court could not be enforced without the presence of the Kikora Limited since it claimed to have paid a deposit to the 1st Defendant and have taken possession of the title of the suit property as security;

e. Kikora Limited was necessary to enable the Court to effectively adjudicate and settle all questions in the suit because of its direct participation in transactions related to the suit property and being therefore in possession of information on the various transactions it entered such that it would be able to furnish the Court with testimony and documentary evidence not previously before this Court because that information had been concealed or suppressed by the 1st Defendant.

33. The Learned Counsel submitted that in the Chamber Summons, Kikora Limited prayed as follows: -

34. The Learned Counsel submitted further that the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs were concerned that Kikora Limited was seeking to file unrestricted pleadings while Order 1 Rule 10 (2) and 10(4) of the Civil Procedure Rules 2010 as to substitution and addition of parties, empowered the Court to join parties to proceedings either as Plaintiffs or Defendants and further the Civil Procedure Rules were binary in their description of pleadings. Pleadings must be styled either as a plaint or statement of defence.

35. In regard to the proposed 7th Defendant (JM Rama, T/A Registrar of Titles in Mombasa), the Learned Counsel submitted that:

a. She was a “necessary party” because she was the register of titles posted at the Mombasa District Registry in or around 2022 - 2023 at the time that the Plaintiffs first learned that the 1st Defendant was trying to transfer a port of the subject property to the 2nd Defendant and immediately lodged cautions at the Land Registry Offices in Mombasa on 17th January 2023. JM Rama delayed to attend to or ignored the Cautions lodged by the Plaintiffs and transferred sub - division LR. No. 31283/3 to the 2nd Defendant on January 19, 2023 without all the typical documents necessary for a valid land transfer. Later in 2025 the Plaintiffs attempted to conduct a title search on the titles of the subject property and learned that the parcel files for LR. No. 31283/1 and LR. No. 31283/2 and multiple documents were missing, misplaced or locked away. JM Rama was the last known person to have made entries in the register of the subject property. She was best suited to explain to the court how registered land documents went missing and whether the transfer of title from the 1st Defendant was procedural.

b. She was a “proper party”. The Plaintiffs seeking that the Court to find that JM Rama committed a tort in illegally transferring LR. No. 31283/3 to the 2nd Defendant and in the disappearance of parcel files and various documents from the land parcel files of LR. No. 31283/1 and LR. No. 31283/2.

c. The JM Rama met the criteria to be added as a Defendant because relief flows from the Respondent to the Plaintiff when the court finds her actions were illegal and the ultimate decree of the Court awards damages to the Plaintiffs.

d. The ultimate decree of this Court could not be enforced without the presence of the JM Rama. The Court could not resolve the ownership dispute among the parties without clear facts.

e. JM Rama was necessary to enable the Court to effectively adjudicate and settle all questions in the suit because she was in possession of information on the various transactions in regard to the title of the suit property at the District Land Registry Office in Mombasa such that she was able to furnish the Court with testimony and documentary evidence not previously before this Court because no other party has this information.

36. The Civil Procedure Rules did not define any other style of pleadings that an interested party should follow to “champion his cause”. Further the Civil Procedure Rules Order 1 Rule 10(4) requires that unless ordered otherwise by the Court, the Plaint must be amended to enjoin the necessary party either as a Plaintiff or Defendant. Already in this suit, the initial plaint filed on 14th February, 2023 was amended on 14th December, 2023 to add the 20th Plaintiff, 4th Defendant and 5th Defendant.

37. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiff had annexed to their notice of motion a draft Further Amended Plaint to ensure that their properly rights and claim for relief against Kikora Limited (proposed 6th Defendant) and JM Rama (proposed 7th Defendant) were clearly enumerated. The draft “Further Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs” challenges the validity of the sub - divisions that the 1st Defendant was undertaking, the rights of the 1st Defendant to transfer any subdivision to another party; and the legality of the process followed by the 1st Defendant and Kikora Limited in the sale agreement, whether there was actual proof of payment of valuable consideration by Kikora Limited to the 1st Defendant and the use the title of a sub - division of the subject land as security in a transaction in which the Plaintiffs were not involved yet they had pre-existing interest in the property.

38. According to the Learned Counsel, the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs would be severely prejudiced if both Kikora Limited and JM Rama were not added as Defendants to answer to their actions in attempts to alienate the property rights of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs to portions of the subject property. By requiring that Kikora Limited constraint was pleadings to a Statement of Defense responding to the allegations in the Further Amended Plaint, the litigation runs less of a risk of being “hijacked” by Kikora Limited which would severely prejudice the Plaintiffs. By filing a Statement of Defence, Kikora Limited could furnish the Court with facts and participate in trial where the alleged facts would be weighed and tested against the evidence and facts findings powers of the High Court (such as the power to order discovery or assessment of documents to establish the truth about any alleged transactions).

39. On Part III of the written submissions of the Preliminary Objection filed by the 1st, 3rd, 4th, 5th, 6th, 7th, 8th and 13th to 19th Plaintiffs, they sought sought to block the joinder of Kikora Limited on the following grounds: -

40. However, the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs opposed the subject preliminary objection for it sought to block the joinder of Kikora Limited who was rightfully a Defendant and necessary party as aforementioned. Further the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs opposed the Preliminary Objection on the basis that it was settled law that Preliminary Objection could only be raised as against pleadings. In the case of “Hassan Ali Joho & Another – Versus – Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2023 [2014] eKLR”, the Supreme Court of Kenya held that: -

“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. (emphasis added)

41. Further in the case of “Hassan Nyanje Charo – Versus – Khatib Mwashetani & 3 Others, [2014] eKLR”, the Court held that: -

42. Kikora Limited had not filed pleadings as of this time upon which a Preliminary Objection could be based. The subject Preliminary Objection was incorrectly filed against a Notice of Motion application, not against pleadings. The facts enumerated in the Application of Kikora Limited were absent from the Statement of Defence of the 1st Defendant and any other current party in the proceeding showing that the 1st Defendant concealed these important facts from the Court in its Statement of Defence and there was possibly a collusion between the 1st Defendant and Kikora Limited which could  result in “hijacked” proceedings whereby the Plaintiffs would  not be able to effectively respond to Kikora Limited''s claims if Kikora Limited not forced to make its own independent pleadings in a statement of Defence that was independent of that statement of Defence of the 1st Defendant.

43. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs further opposed the preliminary objection on the basis that there was no agreement of facts as among the parties at this stage. The Preliminary objection called upon the Court to use its judicial tools of facts finding to determine whether Kikora Limited had met a “threshold” but this threshold was not specified as a pure issue of law.

44. On this point, the Learned Counsel relied on the case of “Mukisa Biscuit Manufacturing Limited – Versus – West End Distributors (1969) EA 696” the Court observed that:-

45. The subject Preliminary Objection ought to fail.

46. In a nutshell, the Learned Counsel urged Court to grant the  2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs the above reliefs they sought.

47. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs filed their written submissions on the discovery of documents through the Law firm of Messrs. Mwangi Kihira & Company dated 26th June, 2025. Mr. Kihira Advocate commenced the submissions by stating that the submissions were in respect of the Notice of Motion application by the  2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs which had sought discovery of various documents in the possession of the 1st, 2nd and proposed 6th Defendants. They had sought Orders under the provision of Order 16, Rules 1, 6, 7, Order 51 of the Civil Procedure Rules 2010, and Sections 3A, 1A, 1B and 63 (e) of the Civil Procedure Act, Cap 21 Laws of Kenya:-

48. The grounds for the Application were that:

a. The 1st, 2nd and 6th Defendants had been in possession of various documents in regard to the suit property which the Plaintiffs had sought to be produced in Court, as enumerated in paragraph (a), and which were necessary for the just determination of the suit.

b. The Plaintiffs had earlier requested the documents, but the 1st Defendant had refused to produce them voluntarily, hence the Application.

c. The Kwale County Government, Physical Planning Department had not been a litigant in the case but had in its possession important information in regard to the development approvals given to the 1st Defendant to construct Golden Sand Resort and Apartments on the suit property LR. No. 12829.

d. The National Environmental Management Authority (NEMA) had not been a litigant in the case but had in its possession important information in regard to the Environmental Impact Assessments conducted on the suit property and Environmental Impact Licenses given to the 1st Defendant to develop Golden Sand Resort on the suit property.

e. The Plaintiffs had been entitled to the information and documentation relevant to the allegations contained in the Plaint and Statements of Defence of the 1st, 2nd, 5th and proposed 6th Defendants.

f. The Plaintiffs had been entitled to the information and documentation requested pursuant to the Rules of Civil Procedure, under the provision of Order 16, Rules 1, 6, 7.

g. It had been in the interest of justice that the Court grant the orders as prayed.

49. According to the Learned Counsel, at the time of filing the submissions, the Plaintiffs had not been served with a replying affidavit by any of the other parties opposing or supporting the motion.

50. On the legal argument on production of documents, the Learned Counsel submitted that the Civil Procedure Rules of 2010 had required parties to furnish their evidence in advance of the commencement of the trial. For a Defendant, Civil Procedure Rules Order 7 Rule 5 provided as follows: -

51. The Learned Counsel relied on the case of “Civil Case 175 of 2011 Concord Insurance Co. Ltd – Versus – NIC Bank Ltd (2013) eKLR”, the Court had referenced Black’s Law Dictionary, 7th Edition, which had defined the word discovery as:

52. In the same case, the Court had quoted favorably paragraph 1 of Volume 13 of the Halsbury Laws of England which had stated:

53. In the case of:- “Oracle Productions Limited – Versus - Decapture Limited & 3 others [2014] eKLR”, the Court had quoted favorably the words of Havelock, J (as he then was):

54. Thus, discovery had created a duty for a party in litigation to disclose documents that were relevant to the litigation even though those documents had been adverse to the party. The suit had been commenced by way of Plaint dated 8th March 2023 and filed on 9th March 2023. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs had filed an Amended Plaint with leave of the Court, dated 14th December 2023 and filed on 15th December 2023.

55. The subject matter in the Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs had been the ownership of the land parcel known as LR. No. 31823 (formerly LR. No. 12829) -  the “suit property” and its various sub - divisions. The Amended Plaint had alleged “inter alia” that:

a. In or around the year 2008, the 1st Defendant had acquired a beachfront land parcel in Diani Beach, LR. No. 12829, on which had stood a defunct hotel.

b. The 1st Defendant had applied for and received approval of the Kwale County Council (as it then was) on various dates between year 2008 and 2011 to redevelop the land for mixed use consisting of apartments, penthouses, a hotel, shops and various amenities.

c. The 1st Defendant undertook the redevelopment between the years 2008 and 2016 upon which the 1st Defendant applied for and was issued with an Occupation Certificate by the County Government of Kwale for apartment constructed on the land.

d. Thereafter, the 1st Defendant sub - divided the land into 3 sub - divisions known as LR. 31283/1, 31283/2 AND 31283/3.

e. Beginning before and continuing after the sub - division of the mother title, the 1st Defendant sold apartments to the Plaintiffs in the format of long term subleases with a right to enjoys their apartments and various advertised common areas and amenities already developed by the 1st Defendant.

f. Each of the sub - divisions of LR. No. 31283 contained various structures and amenities that were part of the approved redevelopment.

g. The Plaintiffs’ use of land did not change due to the sub - division and there was no physical restriction in movement of the Plaintiffs between the various sub - divisions.

h. The 1st and 5th Defendants advertised and made written promises to the Plaintiffs that they would get reversionary interest in regard to the common areas and amenities. The agreements to lease signed by the Plaintiffs and the 1st Defendant provided that the 1st Defendant would register the 3rd Defendant to become the manager of the common areas and amenities and transfer title of the subject property to the 3rd Defendant. The Plaintiffs would get the reversionary interest in the form of shares of the 3rd Defendant. The shareholders of the 3rd Defendant, being apartment owners, would manage the affairs of the 3rd Defendant. The 3rd Defendant would have exclusive right to collect “service charges” which were to be used to maintain the common areas. The 1st Defendant required that all Plaintiffs use the 5th Defendant as solicitor for the parties for the registration of the revisionary interest promised to the Plaintiffs.

i. The Plaintiffs were required to pay the full purchase “subject to contract”.

j. Payments were duly made by the Plaintiffs to the 1st and 5th Defendants, but these Defendants delayed in producing the Agreements to lease (3 – 4 years). When ultimately the Agreements to Lease were produced by the 1st and 5th Defendants, the Agreements to lease detailed the specific location of only the apartments as subdivision LR. No. 31283/2 but did not detail the location of the advertised common areas and amenities. The Plaintiffs were forced to sign these agreements to get the reversionary interest promised. At the time, the Plaintiffs had free unrestricted use of all 3 sub - divisions of the suit property and most of the Plaintiffs did not perceived an ulterior intend in the 1st and 5th Defendants. However, the 5th Plaintiff was concerned that the description of the land was incomplete and did not match what he had paid for and refused to sign the Agreement to lease presented to him.

k. In regard to reversionary interest and service charges, the 1st Defendant had registered the 3rd Defendant but had failed to transfer title of the subject property to the 3rd Defendant. Further, the 1st Defendant had begun to send to the Plaintiffs demand notices for service charges. The Plaintiffs had soon noticed that the 1st Defendant had not been using the service charges effectively for the management of the common areas. The 1st Defendant had refused to provide accounting for the service charges.

l. In or about the year 2022, the Plaintiffs had learned that the 1st Defendant had been attempting to transfer portions of the suit property to unknown parties. The Plaintiffs had immediately lodged cautions at the Land Registry Offices in Mombasa on 17th January 2023.

m. Employees of the 4th Defendant had delayed to attend to or had ignored the cautions lodged by the Plaintiffs and had transferred subdivision LR. No. 31283/3 to the 2nd Defendant on 19th January 2023.

n. Thereafter, jointly, the 1st and 2nd Defendants:

i. began to construct a boundary wall between the various sub - divisions.

ii. began to destroy the structures and amenities located in subdivision LR. No. 31283/3

iii. began to relocate structures and amenities from sub - divisions LR. No. 31283/1 and LR. No. 31283/3 to sub - division LR. No. 31283/2.

o. The Defendants’ actions sought to constrain the Plaintiffs and other apartment owners to sub - division LR. No. 31283/2 which contains only approximately 7.4 acres as opposed to the advertised approximate 19 acres for which the Plaintiffs had paid and which is the area of the mother title LR. No 12829. The development suffered extensive damages due to the actions of the 1st and 2nd Defendants.

p. The Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs had advanced multiple causes of action against the Defendants ‘inter alia:

i. Breach of contract by the 1st and 3rd Defendants;

ii. Misrepresentation by the 1st Defendant;

iii. Breach of the Sectional Properties Act and failure to register the Plaintiffs’ reversionary interest by the 1st, 4th and 5th Defendants;

iv. Fraud by the 1st Defendant;

v. Negligence by the 1st, 2nd and 3rd Defendants;

vi. Misfeasance by the 1st and 2nd Defendants;

vii. Misfeasance by the 4th Defendant;

viii. Breach of Duty of Good Faith and Fair Dealings by all Defendants

q. The Plaintiffs had sought relief enumerated in multiple alternative prayers, including annulment of the Agreements of Lease and full refund of their monies by the Defendants, or alternatively an order that the Defendants fully restore the development.

56. The Learned Counsel submitted that the Defendant filed statement of Defence to the Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs as follows:-

a. The 1st Defendant had filed a Statement of Defence (dated 13th February 2024 and filed 19th February 2024);

b. The 2nd Defendant had filed a Statement of Defence (dated 3rd April 2023 and amended on 20th December 2023);

c. The 3rd Defendant had not made an appearance;

d. The 4th Defendant had filed a Statement of Defence (dated 13th February 2024 and filed 14th February 2024);

e. The 5th Defendant had filed a Statement of Defence (dated 3rd May 2024).

57. On 5th March 2025, Kikora Limited, which until that time had been unknown to the Plaintiffs, had filed an Application via a Notice of Motion seeking to be enjoined as the Interested Party. On 7th June 2025, the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs:

a. Filed a Replying affidavit dated 5th June 2025 opposing the joinder or Kikora Limited as an interested party.

b. Filed a corresponding Countermotion seeking joinder of Kikora Limited as the 6th Defendant and J.M. Rama (then the Land Registrar, Mombasa District Registry), and had annexed the following documents:

i. A Further Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs;

ii. A Supplementary Witness Statement of Peter Musyoki Ngau;

iii. A Supplementary Document List of these Plaintiffs.

58. The Learned Counsel submitted that the 1st and 2nd Defendants had filed Statements of Defence making various allegations in regard to the issues before the Court but had failed to annex various relevant documents in their Lists of Documents, which had necessitated the Application for discovery/production of documents. The proposed 6th Defendant, Kikora Limited, had filed a Notice of Motion application and supporting affidavit making various allegations in regard to the issues before the Court but had failed to annex various relevant documents in its application, which had necessitated the Application for discovery/production of documents.

59. In the case of:- “Civil Case 175 of 2011 Concord Insurance Co. Ltd – Versus -  NIC Bank Ltd (2013) eKLR”, the Court had highlighted that an Applicant in a motion to produce had to clearly demonstrate the relevance and necessity of the documents sought. In regard to the 1st Defendant, it had made various allegations in its Statement of Defence to the Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs (filed on 19th February 2024) in respect of the following issues before the Court:

a. In regard to whether or not the 1st Defendant had obtained approvals from relevant government authorities for the development:

i. The 1st Defendant, at paragraph 6 of its Statement of Defence, had claimed that “it had followed the requisite and applicable laws and regulations for the purpose of constructing and eventual sub - division of the property.”

ii. The 1st Defendant, at paragraph 40 of its Statement of Defence, had alleged that “The 1st Defendant states that it had all the rights to use the parcel of land and develop it subject to all the approvals and permits being issued by the relevant authorities and that the Plaintiffs ought not to interfere with its use of the land as they did not have any right or interest over it.”

iii. However, the 1st Defendant had not filed in its List of Documents any of the relevant applications, approvals, and permits allegedly issued by relevant physical planning authorities, including but not limited to the County Government of Kwale, Kwale County Council, and the National Environment Management Authority (NEMA). This had included the relevant architectural plans, site plans, environmental assessment reports, and engineering reports, which would have enabled the Plaintiffs to cross-examine on this issue.

iv. Prior to the initiation of the suit, the 1st Defendant had supplied to the Plaintiffs only a few select pages of the approved documents (which the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs had annexed to their List of Documents and to the subject motion). The 1st Defendant had used those selected pages to represent to the Plaintiffs that it had approvals of all relevant authorities and to induce the Plaintiffs to enter into the Agreements to Lease to purchase apartments in the development. It was therefore likely that the 1st Defendant had complete copies of the approved documents sought, including but not limited to approved building plans, architectural and structural drawings, construction permits, environmental assessment reports, and engineering reports.

v. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs had believed that the 1st Defendant had been concealing or withholding the applications and approved building plans, architectural and structural drawings, construction permits, environmental assessment reports, and engineering reports, because those documents had been adverse to the 1st Defendant’s case, or the 1st Defendant had made false claims in its Statement of Defence alleging to have “followed the requisite and applicable laws and regulations for the purpose of constructing and eventual sub - division of the property” and to have developed the property “subject to all the approvals and permits being issued by the relevant authorities”.

b. In regard to sub - division of the property and more specifically on the location of the various amenities upon sub - divisions of the mother title (subject property):

i. the 1st Defendant in its Statement of Defence claims as follows:

1. At paragraph 8 the 1st Defendant states:- “at the time of the application for the necessary construction permits and approvals, LR No. 12829 was yet to be subdivided into three portions.”

2. At paragraph 9 the 1st Defendant states “the subdivision of the mother property was properly done having taken into consideration the exact limits of the development and amenities.

3. At paragraph 5 the 1st Defendant states:- “that the Estate known as Golden Sand Resort consists of Four Blocks of Apartments and amenities such as a Hotel, Fitness Centre, Swimming pool, common gardens, parking and pathways all of which were developed and constructed on the land measuring 7.4 acres and being Subdivision LR. No. 31283/2 and registered as CR No. 70849/3. However, the 1st Defendant denies that the apartments and the amenities were to occupy the entire 18 acres being LR. No. 12829.”

4. At paragraph 10 the 1st Defendant claims:- “all amenities are situated on sub - division No. 31283/2 and registered as CR No. 70849/3.”

5. At paragraph 11 the 1st Defendant states:-“all amenities complained of by the Plaintiff as not having been developed on LR. No. 31283/2 are entirely on the back, front and or within the Golden Sands Resort and not on the sides were the other two portions are erected.”

6. At paragraph 14 the 1st Defendant states:- “The 1st Defendant states that it is false and misleading for the Plaintiff’s to alleged the Development of the Block of Apartments and the amenities were done on separate parcels of land with the apartments developed on LR. No. 31283/2 while the amenities above mentioned developed on LR No. 31283/1 and 31283/3.”

7. At paragraph 21 the 1st Defendant states:- “The 1st Defendant avers that portion No. 31283/1 and 31283/3 are portions of land in which the Plaintiffs do not have an interest in and a right to use and puts the Plaintiffs to strict proof thereof.”

ii. The determination of the “exact limits of the development and amenities” is typically done by topographical survey, site maps and cadastral maps with geo-referencing.

iii. The 1st Defendant failed to file in its List of Documents relevant georeferenced surveys, site maps and cadastral maps for any and all of the apartments and amenities advertised to the Plaintiffs.

iv. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs believe that the 1st Defendant was concealing or withholding the georeferenced surveys, site maps and cadastral maps because they are adverse to the 1st Defendants case.

v. To cross–examine the 1st Defendant on each of the above statements and to ascertained the actual knowledge of the 1st Defendant in regard to the actual location of the various amenities, it was necessary that the Plaintiffs have any and all topographical surveys, architectural drawings, approved development plan, site maps which the 1st Defendant conducted from the year 2008 to 2023 to determine the exact location of the various amenities and limits of the development on the property.

vi. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs believe that the 1st Defendant was concealing or withholding the requested documents because they are adverse to the 1st Defendant’s case or the 1st Defendant made false claims in its Statement of Defence alleging to “taken into consideration the exact limits of the development and amenities” at the time of the subdivision.

c. In regard to registration of the Agreements to Lease entered between the 1st Defendant and the various Plaintiffs and the registration of reversionary interest:

i. the 1st Defendant made various statements including:

1. At paragraph 44, the 1st Defendant stated: “The 1st Defendant denies the contents of paragraph 18C and the particulars of the alleged Breach of the Sectional Properties Act and the failure to Register the Reversionary Interest of the Plaintiffs as enumerated from (i) to (ii(a-f) of the Amended Plaint and puts the Plaintiffs to strict proof thereof.”

2. At paragraph 45 the 1st Defendant stated: “The 1st Defendant avers that the properties in question are registered as long term leases under the Land Registration Act 2012”.

3. At paragraph 46 the 1st Defendant states that:- “the properties in question are yet to be converted to sectional properties and hence do not fall within the ambits of the Sectional Properties Act”.

4. At paragraph 50 the 1st Defendant stated that:- “it will be prudent for the Court to examine the terms of the respective documents above which not only govern the relationships the Plaintiffs and the 1st Defendant but provides for premises being purchased together with the amenities being offered within the Estate and above all, the parcel of land within which the apartments being purchases and the amenities are developed and erected on”.

ii. The 1st Defendant has not filed in its List of Documents any relevant communication between it and the Register of Titles in Mombasa (4th Defendant) in regard to the said registration of each sub - lease for each apartment and registration of the reversionary interest of the Plaintiffs to the common areas and amenities.

iii. Under the Land Registration Act, No. 3 of 2012, registered sub - leases are supposed to be clearly recorded on the mother title itself and the 1st Defendant did not file a copy of the title of LR. No. 31283 or any subdivision thereof to show any sublease recorded therein.

iv. When the Plaintiffs attempted to conduct a search on the titles of the subject property in May-June 2025, they were told that the parcel files and multiple documents had been lost, removed, misplaced, were missing or locked up. Therefore the Plaintiffs were unable to confirm registration of any of the alleged registered Agreements to Lease at the Registrar of Titles in Mombasa.

v. The 1st Defendant annexed to its List of Documents a document indexed as “Document No 8, a Lease for Apartment A204 dated 10th February” (see pages 49 to 83 of List of Documents of the 1st Defendant). Under the Definitions section of the annexed document (page 54) it contains the following description of the word ‘Apartment’:

“Apartment’ means ALL that studio Apartment A204 and more particularly described as Apartment Number A204 as the same is more particularly described and delineated on the Plan registered in the Registry of Documents at Kwale in Volume B-12 Folio 1902/14131 File 1637”

vi. The Learned Counsel submitted that the Register of Documents has informed them they are been unable to locate such an entry in the register.

vii. To cross–examine the 1st Defendant on each of the above statements, it is necessary that the Plaintiffs have any and all communication between the 1st and 4th Defendants in regard to registration of apartments purchased by the Plaintiffs and registration of common areas and reversionary interest.

viii. To cross–examine the 1st Defendant on the issue of the alleged “Registered Plan” it was necessary that the Plaintiffs have any and all pages / components of the alleged Registered Plan registered at the Register of Documents.

ix. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs believe that the 1st Defendant was concealing or withholding the requested documents because they were adverse to the 1st Defendant’s case or the 1st Defendant made false claims in its Statement of Defence alleging to have registered the subleases and reversionary interest of the Plaintiffs and other apartment owners “as long term leases under the Land Registration Act 2012”.

d. In regard to service charges:

i. the Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs alleged at paragraph 9 as follows:

9. “As per the terms of the various Agreements to Lease, the 3rd Defendant was set up by the 1st Defendant, under the Management Agreement, as the management company of the Resort and is was mandated to collect all service charges and to have the powers to sub-contract the management of the services of the Estate to an external manager. The Plaintiffs were to be allotted shares in the 3rd Defendant and would subsequently be shareholders in the 3rd Defendant where after, they would be entitled to the management rights of the Apartment blocks and other common areas.

ii. Further, the Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs alleged at paragraph 18A (vi) as follows:-

(vi) (d)Purporting The 1st Defendant has purported to raise invoices for the collection of service charge, a mandate reserved exclusively for the 3rd Defendant.

iii. The 1st Defendant states as follows at paragraph 61 of its Statement of Defence: “The issue of whether service changes is high or low is not for the court to decide as the enforcement of the obligation of payments is not on the Court but a term of the sublease”.

iv. The Plaintiffs submitted that 1st Defendant attempts to side-step the complaint of the Plaintiffs and did not file any document showing that it has right to “enforce” the payment of service charges which the Plaintiffs have alleged is the exclusive right of the 3rd Defendant. Further, the 1st Defendant did not file any accounting for how much money was collected as services charges, from whom it was collected and how the collected monies were used. This accounting is in the exclusive possession of the 1st Defendant.

v. To cross–examine the 1st Defendant on issues of service changes, it is necessary that the 1st Defendant file any document which purports to give it a right to act in “the enforcement of the obligation of payments” of service charges and maintenance of the common areas and amenities in the subject property and file accounting of services charges it collected.

vi. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs believed that the 1st Defendant was concealing or withholding the requested documents in regard to service charges because they are adverse to the 1st Defendant’s case or the 1st Defendant made false claims in its Statement of Defence alleging to have right to “enforce” the payment of service charges and use the same.

e. In regard to “Special Conditions” contained in the Lease for the mother title LR No. 31283 entered between the 1st Defendant and the Kwale County Government in or around November 2017:

i. the 1st Defendant stated as follows at paragraph 7 of its Statement of Defence: “The 1st Defendant states that it did not in any way alter and/or breach any special conditions, additionally all actions performed were done in total obedience of the law and upon following the due process and procedures laid out in the law”

ii. The 1st Defendant had not filed in its List of Documents any relevant communication between it and the county government of Kwale in regard to multiple acts which the Plaintiffs enumerated in the Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs including but not limited to government permits and approvals for the following acts:

1. Further sub - divide the mother title or any sub - division such as LR. No. 31283/1 as the 1st Defendant has purportedly done as alleged in the Application of Kikora Limited to be enjoined in this suit;

2. To transfer any portion of the mother title to the 2nd Defendant;

3. To transfer any portion of the mother title to the proposed 6th Defendant (Kikora Limited);

4. To construct the “fish hut” and toilets located at the beach front of LR. No. 31283/2;

5. To construct the fences between the various sub - divisions;

6. To relocate the water tanks from LR No. 31283/3 to LR No. 31283/2 and install new water tanks on the roof of building located on LR No. 31283/2;

7. To relocate the septic tank and associated sewage pipes from LR No. 31283/3 to LR. 31283/2;

8. To construct a biodigester on LR. 31283/2.

iii. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs believe that the 1st Defendant was concealing or withholding the communication with the County Government of Kwale in regard to compliance with the special conditions contained in the Lease of the subject property LR No. 31283 because they are adverse to the 1st Defendants case or the 1st Defendant lied in its Statement of Defence and did not follow the due processes and procedures laid out in law and special conditions.

iv. To cross–examine the 1st Defendant on the issue of compliance with the special conditions in the lease of the mother titled LR. No. 31283, it is necessary that the Plaintiffs had any and all communication between the 1st Defendant and County Government of Kwale or National government in regard to activities/projects complained of in the Amended Plaint of the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs.

f. In regard to the transfer of portions of the subject property to the 2nd Defendant:

i. Both the 1st and 2nd Defendants admitted that the 1st Defendant transferred Sub - division LR No. 31283/3 to the 2nd Defendant.

ii. The Statement of Defence of the 1st Defendant including the following allegations:

1. At paragraph 25 the 1st Defendant states:- “The 1st Defendant denies that the transfer of one of the portions of land of the 1st Defendant would prejudice the Plaintiffs. The 1st Defendant states that there would be no prejudice occasioned to the Plaintiffs as they do not have any property rights over any of the portions”.

2. At paragraph 26 the 1st Defendant states:- “The 1st Defendant states that the leases executed by the Plaintiff did not have any bearing with LR. No 31283/3 and hence the Transfer of the said land to the 2nd Defendant did not in any way whatsoever affect the complaint or otherwise for the terms of the lease”.

iii. The 1st Defendant did not file in it List of Documents the documents relevant to the alleged sale and transfer of LR. No. 31283/3 to the 2nd Defendant.

iv. To cross-examine the witnesses of the 1st Defendant, the Plaintiffs seek from the 1st Defendant copies of all documents relevant to the alleged sales and transfers including financial documents showing payment of valuable consideration to the 1st Defendant by the 2nd Defendant, valuation of the properties and payment of stamp duty.

60. The 2nd Defendant makes various allegations and statements in its Amended Statement of Defence (amended on 20th December 2023) in respect to the following issues before the court:

a. In regard to purchase of a portion of the subject property,

i. the Amended Statement of Defence of the 2nd Defendant includes the following relevant allegations by the 2nd Defendant:

1. At paragraph 2, the 2nd Defendant alleged that:- “she acquired the said parcel of land L. R. No. 31283/3 (CR 70852) measuring approximately 1.743 Ha, as an innocent purchaser for valuable consideration, in an overt market and without notice hence acquired good and infeasible title.”

2. At paragraph 19, the 2nd Defendant alleged that:- “By an agreement dated 11/12/2017 the 1st Defendant (the vendor) sold to the 2nd Defendant (the purchaser) all that parcel of land known as KWALE L.R. No. 31283/3 CR no 70852 at a mutually agreed purchase price of Kenya Shillings One Hundred and Eight Million Only (Kshs. 108,000,000.00) and at Clause, M of the said agreements, the 1st Defendant gave the following warrantees among others (a) The Vendor is the legal owner and beneficial owner of the property (b) There is no adverse claim or squatters on the property, or any disputes regarding ownership, boundary, easements or rights of way so far as the Vendor is aware (c) … (d) … (e) … (f) … (g) … (h) … (i) … (j) … (k) … (l) … (m) No payment or deposits have been received from any other person with respect to the property.”

ii. The 2nd Defendant annexed to its List of Documents a Sale agreement between the 1st and 2nd Defendants which is identified in the index as “An Agreement dated 19th December, 2022”. However, the said Sale Agreement is undated. At the end of the said Sale Agreement the 2nd Defendant annexed a page from a subdivision survey of the mother title LR. No 31283 (former LR. No. 12829) stamped by the District Survey Office dated 11/12/2017. It appears that the 2nd Defendant then used this page to allege it to be the sale agreement was dated 11th December, 2017 yet those were 2 separate events. The Plaintiffs are concerned that the 2nd Defendant is engage in attempt to back-date the said sale agreement to appear that the sale of the subdivision preceded the sale of apartments to the Plaintiffs. The truth of when the transaction occurred can be ascertained from financial records.

iii. The List of Documents of the 2nd Defendant is devoid of any financial records showing actual payment of valuable considerations by the 2nd Defendant to the 1st Defendant, payment of legal fees to the advocates involves, payment for the survey which the 2nd Defendant undertook (and the survey only one page is annexed to the List of Document of the 2nd Defendant, but the rest had been annexed to a Replying Affidavit of the 2nd Defendant dated 6th April, 2023).

iv. Further it is at dispute whether the 2nd Defendant actually paid any valuable consideration to the 1st Defendant, or whether the 2 Defendants merely engaged in a paper-only transaction to defeat the interest of the Plaintiffs in regard to the subject property.

v. To cross–examine the 1st and 2nd Defendants on the sale agreement between these 2 parties and in specific the questions of when the alleged sale agreement for LR. No 31283/3 was signed and whether the 2nd Defendant made payment of valuable consideration to the 1st Defendant, it was necessary that the Plaintiffs had all financial records related to the sale including bank transfer payments, valuation of the properties and official receipts for relevant payments.

vi. The 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs believe that the 2nd Defendant was concealing or withholding documents in regard to the transfer of LR. No. 31283/3 because they are adverse to the 1st and 2nd Defendants’ case or the 2nd Defendant made false claims in its Statement of Defence in regard to the date when the sale agreement between the 1st and 2nd Defendants was signed and false claim to have “paid valuable consideration” to the 1st Defendant.

61. In regard to the transfer of portions of the subject property by the 1st Defendant to the proposed 6th Defendant (Kikora Limited):

a. The proposed 6th Defendant (Kikora Limited) filed a by Notice of Motion application dated 5th March 2025 seeking to be enjoined as the interested party in these proceedings, the grounds of which had the following relevant allegations:-

“(i) The Applicant is the lawful owner of the portion of land measuring 4.6 acres, evincing a personal interest and legal stake in any disputation arising over and touching on proprietorship over this parcel of land, as subsisting in the instance proceedings (ii) Being the lawful owners pursuant to the sale as expressed in the Sale Agreement dated 23rd February, 2023, the adverse orders sought in the instant proceedings will patently prejudice the Applicant’s lawful rights; which issues directly arises in the instant proceedings

b. The 1st Defendant concealed relevant facts regarding further subdivision of LR No. 31283/1 and transferred of portions of the suit property to the proposed 6th Defendant.

c. The Plaintiffs seek copies of all documents relevant to the alleged sales and transfer of portions of the suit property to Kikora Limited including financial documents showing payment of valuable consideration to the 1st Defendant by the proposed 6th Defendant, valuation of the properties and payment of stamp duty.

62. The documents requested by the Plaintiffs be produced by the 1st, 2nd and proposed 6th Defendants were necessary for the fair adjudication and disposal of this suit as well as for the purpose of saving costs. Litigation will be prolonged unnecessarily should these Defendants fail to produce the documents.

63. The provision of Order 7 Rule 5 of the Civil Procedure Rules, 2010 provides that the Court can sanction of party who fails to comply with an Order to produce documents.

64. In the case of:-  “Kahumbu – Versus -  National Bank of Kenya Limited [2003] 2 E.A 475”, the Court made determination “inter alia”:-

65. The Plaintiffs have learned that:

a. That the parcels files and multiple documents therein at the District Land Registry Offices in Mombasa for the sub - divisions of the subject property had been removed, were missing, misplaced, lost or locked away as they have been turned away from attempts to conduct official search on the Subject properties as evident in the documents annexed to the Notice of Motion application.

b. The Register of Documents in Kwale has reported that the alleged “Registered Plan” described on the Lease for Apartment No A204 that the 1st Defendant annexed to its Document List as Document No 8, a Lease dated 10th February (Pages 49 to 83 of Document List of 1st Defendant) does not exist in that registry. This document was referenced in the “Definitions” section of the said Agreement to Lease (page 54) stating as follows:-

“Apartment’ means ALL that studio Apartment A204 and more particularly described as Apartment Number A204 as the same is more particularly described and delineated on the Plan registered in the Registry of Documents at Kwale in Volume B-12 Folio 1902/14131 File 1637”

c. In a bid to ensure efficient and cost – effective administration of justice, the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs prayed for:-

i. An ORDER directing that a representative of the Kwale County government give testimony at the Hearing of this suit in regard to the development approvals issued to the 1st Defendant for building and structures on the subject property;

ii. An ORDER directing that a representative of the National Environment Management Authority (NEMA) give testimony at Hearing of this suit in regard to the scope of Environmental Impact Assessments Licenses issued to the 1st Defendant for building and structures on the subject property;

iii. An ORDER directing the Registrar of Documents at Mombasa, do testify at Hearing of this suit in regard to the contents of Volume B-13 Folio 1902/14126, File 1637, allegedly registered by the 1st Defendant on an unknown date;

66. In the long run, the Learned Counsel the 2nd, 9th, 10th, 11th, 12th and 20th Plaintiffs pray for the orders sought from the application.

67. While opposing the application dated 5th June, 2025 by the Plaintiffs, through the law firm of Messrs. Khalid Salim & Company Advocates, the 1st Defendant filed their written submissions dated 26th July, 2025. Mr. Khalid Advocate commenced his submissions by recounting the brief facts of the case. The Learned Counsel stated that for determination before this Honourable Court was the Plaintiff’s Notice of Motion application dated 5th June 2025 brought pursuant to Order 16 Rules 1, 6, 7 and Order 51 of the Civil Procedure Rules 2020, Sections 3A, 1A, 1B and 63 (e) of the Civil Procedure Act, Cap. 21.  The said application was based on the grounds enumerated thereon and supported by an Affidavit of one PETER MUSYOKI NGAU, one of the Plaintiffs, sworn on 5th June 2025. The 1st Defendant/Respondent opposed the said application through Replying Affidavit sworn on 16th July 2025.

68. According to the Learned Counsel, the main issue for determination from the application was whether the order sought could be granted. The Counsel submitted that the purpose of discovery was enumerated in the case of “Oracle Productions Limited – Versus - Decapture Limited & 3 others [2014] KEHC 865 (KLR)” as to level the litigation field, to expedite hearing, reduce costs and allow parties to gauge the case they would fact at the trial. Which position was aptly captured in Halsbury’s Laws of England Vol 13 paragraph 1:

69. It was the contention of the Learned Counsel that the parcel of land referred to by the Applicants being LR. No. 12829 was no longer in existence having been sub - divided.  Further, no construction commenced on the said parcel as of the year 2008, and therefore the Applicants could not claim or request documents for a period during which the alleged cause had not yet arisen.

70. The information sought pertain to financial and contractual dealings between third parties and was protected under the doctrine of privity of contract.  The Applicants, not being party to these transactions, had no right to demand disclosure thereof.  The information sought was invasive and protected by law.

71. To buttress on this point, the Counsel cited on the case of:- “Oluoch – Versus - Charagu [2003] 2 EA, 649” as relied upon in the case of “Peter ONditi Ogugu – Versus - Allpack Industries Limited & another [2017] KEELR 1831 (KLR)” it had been held that:-

72. According to the Counsel, the documents sought in the instant application, were  neither specific nor were they important to the applicant’s case. They were fishing expeditions on irregularities committed, of any, by the 1st Respondent.. They went ahead to state on the decision of Azangalala J (as he then was) in the case of:- “National Social Security Fund Trustees – Versus - Dr. Sally Kosgei & another [2005] eKLR” which held that:-

“An order for production of documents should not serve as coercion to a party to prove its pleadings at the discovery and inspection stage”.

73. Although served with a notice to produce, the Applicant’s advocate had erroneously listed the property details, to which the 1st Respondent responded through its Advocates that it was not the owner of the said parcel of land. Further, he reiterated that some of the documents requested contain private information relating to financials position of the 1st Respondent.  The Applicants could not be provided with such information due to their confidentiality and privity of contract nature. The Applicants had failed to correlate the financial aspect and its importance with the suit at hand.  Thereby failing to show the relevance of the documents and the controversy they wished to solve. To this end, the Counsel placed reliance on the case of: “Aluoch – Versus - Kenya Ports Authority & another (Cause E071 of 2022) [2025] KEELRC 1756 (KLR) (10 April 2025) (Ruling)” in which the Court held that:-

74. The Applicant’s application was an afterthought. It was apparent from the depositions contained in the supporting affidavit that the Plaintiff sought to fill gaps which had emerged after the Defence was filed, thereby defeating the purpose of discovery of documents. It was the 1st Respondents submissions that the Applicant had failed to discharge to the standard required the basis for grant of the production order.  Therefore, the orders sought on the production of the documents could not be granted.

75. In conclusion, the Applicants themselves admitted-particularly in Paragraphs 4 to 8 of their Motion – that they were already in possession of some of the documents now being sought. It made this application unnecessary, misleading, and duplicative.  It was implausible for the Applicants to seek documents that was already in their custody.  This amounted to an attempt to misuse the court process based on subjective beliefs and speculation.  Thus, the Applicants application ought to be dismissed with costs to the 1st Respondent.

76. I have carefully read and considered the pleadings herein, the comprehensive submissions, the myriad authorities cited by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures.

77. made by the by the parties. In order to arrive at an informed, reasonable and Equitable decision, the Honorable Court has condensed the subject matter into the following five (5) issues for determination. These are: -

78. Under this Sub – heading, the Honourable Court will decipher on whether the Preliminary Objection filed by a section of the Plaintiffs against Kikora Limited’s application for joinder was merited or not. The Preliminary Objection dated 10th April 2025 raised three grounds:

79. The classic test for a valid preliminary objection was set out in “Mukisa Biscuit Manufacturing Co. Limited – Versus -  West End Distributors Limited [1969] EA 696”, where Law JA held: -

80. Sir Charles Newbold P added:

81. Similarly, in the case of:- “Oraro – Versus -  Mbaja [2005] 1 KLR 141”, Ojwang J (as he then was) cautioned:

82. On the issue of locus standi. Clearly, this is a legal issue. However, in the instant case, the fundamental triable issues herein are whether Kikora Limited has “locus standi”. To resolve this matter, it will depend on whether it indeed acquired proprietary rights under the terms and conditions stipulated under the duly executed Sale Agreement of 23rd February 2023. From the filed pleadings, I have taken cognizance that this is a vehemently contested factual issue requiring. To wriggle around it, it will definitely compel the Court to get into the bottom of the matter through intensive interrogation of the facts and adducing of empirical both oral and documentary evidence for instance the sale agreement, transfer forms, receipts, title documents, etc.). Clearly, these are factual in nature and thus may not be available as preliminary issues based on pure law. In the case of:- “Law Society of Kenya – Versus -  Commissioner of Lands & Others [2001] eKLR”, the Court held:

83. Similarly, in the case of:- “Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR”, the Court of Appeal emphasized that locus standi is established where a party demonstrates a genuine stake in the outcome of the proceedings. Under the provision of Article 40 of the Constitution of Kenya, 2010, every person has the right to acquire and own property of any description in any part of Kenya. A party asserting such a right must show evidence of acquisition.

84. In the instant case, Kikora Limited to support its proprietary rights bestowed on them under the provision of Article 40 of the Constitution of Kenya, 2010 and Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2010 relies wholly on a Sale Agreement dated 23rd February 2023 with the 1st Defendant (Elegant Holdings Limited) for a portion of LR. No. 31283/1. It also claims to hold the original mother title as security pending completion. However, the Plaintiffs vigorously challenge this transaction on diverse grounds including:-

a. Being fraudulent and unprocedural,

b. Conducted without the required consent of the County Government of Kwale, contrary to the lease conditions,

c. In contravention of existing equitable interests of apartment purchasers in the amenities situated on LR No. 31283/1.

85. Based on the provision of Section 109 to 109 of the Evidence Act, Cap. 80 on the principles of “the burden of Proof,” the Plaintiffs who are alleging ought to prove their cases and which in the ordinary circumstances can only be effected through a full trial. Thus, whether Kikora has locus standi depends on whether the Sale Agreement and subsequent possession of the title created proprietary rights capable of recognition in law. The provision of Section 3(3) of the Law of Contract Act, Cap. 23 requires contracts for disposition of an interest in land to be in writing, signed by the parties, and attested. However, as the Court of Appeal held in the case of:- “Willy Kimutai Kitilit – Versus - Michael Kibet [2018] eKLR”, even where formal transfer has not been registered, equitable interests may arise under the doctrine of constructive trust or proprietary estoppel.

86. Conversely, in numerous cases including the one of:- “David Sironga Ole Tukai – Versus - Francis Arap Muge & 2 Others [2014] eKLR”, the Court stressed that a sale agreement alone does not confer legal ownership until registration under the Land Registration Act, No. 3 of 2012. If Kikora Limited can prove that the Sale Agreement of 23rd February 2023 was validly executed, duly stamped, and supported by valuable consideration, then it has at least an equitable interest sufficient to confer locus standi.

87. If, however, the transaction is shown to be tainted by fraud, illegality, or lack of statutory consents, then Kikora Limited’s claim to locus standi collapses, as no proprietary rights would have accrued.

88. On the issue of joinder it is a right accorded to a party before pre – trials are closed to join the parties they feel necessary to be joined in a suit.

89. I reiterate that, ideally, Kikora Limited’s locus standi is not a pure point of law but a mixed question of law and fact. It can only be determined upon intensive examination of the Sale Agreement, the title documents, and compliance with statutory requirements. Accordingly, the preliminary objection raised to the effect that Kikora lacks “locus standi” is baseless, unfounded and thus cannot succeed at this stage. It lacks merit whatsoever.

90. Under this sub title the Honourable Court is called upon to examine whether the Plaintiffs have met the threshold for discovery of documents under the Civil Procedure Rules. Order 11 of the Civil Procedure Rules, 2010 governs pre‑trial directions and conferences, and discovery is central to that process. Order 16 Rules 1, 6 and 7 empower the Court to order discovery of documents in the possession of a party where such documents are necessary for the fair determination of the suit. Order 7 Rule 5 requires a Defendant to file with its Defence a list of witnesses, witness statements, and “copies of documents to be relied on at the trial.”

91. In “Oracle Productions Ltd – Versus - Decapture Ltd & 3 Others [2014] eKLR”, Havelock J. stated:

92. In “Concord Insurance Co. Ltd – Versus -  NIC Bank Ltd [2013] eKLR”, the Court cited Halsbury’s Laws of England Vol. 13 para. 1:

“The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their relevant cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial.”

93. The Court of Appeal in “Oluoch – Versus -  Charagu [2003] 2 EA 649” emphasized:

“The documents sought must not only be specific but must also be important for the advancement of the case of the party seeking production.”

94. The Plaintiffs seek production of:

• Approved building plans, architectural drawings, and environmental approvals;

• Topographical surveys and site maps;

• Financial records evidencing transfers to the 2nd and proposed 6th Defendants;

• Service charge accounts;

• A list of unsold apartments.

95. These requests are not generalised “fishing expeditions.” They are tied to specific allegations in the Amended Plaint and to specific averments in the Defences. For example:

(i) The 1st Defendant pleaded that it obtained all requisite approvals, yet failed to annex them.

(ii) The Plaintiffs allege misrepresentation as to the location of amenities, which can only be tested against topographical surveys and site plans.

(iii) The dispute over service charges cannot be resolved without accounting records.

96. The 1st Defendant’s objection that some documents are public records is not a bar to discovery. The fact that a document may be obtainable from a public office does not relieve a party who relies on it from the duty to produce it if it is in their possession.

97. In conclusion to this issue, the Plaintiffs have identified the documents with specificity, shown their materiality to the issues in dispute and demonstrated that the documents were in the possession or control of the Defendants.

98. Accordingly, the Plaintiffs have met the threshold for discovery under the Civil Procedure Rules. I am satisfied that the Plaintiffs have met the legal threshold for discovery. The documents sought are specific, relevant, and material to the issues in controversy. In line with the principles in “Oracle Productions Ltd – Versus -Decapture Ltd (Supra)”, “Concord Insurance Co. Ltd – Versus -  NIC Bank Ltd”, and “Oluoch – Versus -  Charagu  (Supra)”, I direct that the 1st, 2nd, and proposed 6th Defendants do produce the documents enumerated in the Motion within 21 days.

99. Under this sub title, the Honourable Court shall examine whether Kikora Limited and J.M. Rama ought to be joined as parties, and in what capacity. Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 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 adjudicate upon and settle all questions involved in the suit, be added.”

100. The Court of Appeal in “Departed Asians Property Custodian Board – Versus -  Jaffer Brothers Ltd [1999] 1 EA 55” held:

“A party may be joined if his presence before the court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter.”

101. Further in the case of “Kingori – Versus – Chege & 3 Others [2002] 2KLR 243”, Nambuye J, (as she then was) explained that: -

102. The Plaintiffs’ position is that Kikora Limited entered into a Sale Agreement dated 23rd February 2023 with the 1st Defendant for a portion of LR No. 31283/1. The Plaintiffs allege the transaction was fraudulent, unprocedural, and prejudicial to their equitable interests in amenities situated on that land. They seek reliefs that would nullify Kikora’s claimed title. Kikora Limited asserted lawful proprietary rights under Article 40 of the Constitution, and seeks joinder as an Interested Party, not a Defendant.

103. Where substantive reliefs are sought against a party (e.g., cancellation of title, declarations of fraud), joinder as a Defendant is necessary. An Interested Party is appropriate only where no direct relief is sought, but the party has a stake in the outcome (“Francis Karioki Muruatetu – Versus -  Republic & 5 Others [2016] eKLR”).

104. It is this Court’s finding that since the Plaintiffs seek substantive reliefs that may directly affect Kikora’s claimed title, Kikora Limited ought to be joined as the 6th Defendant, not merely as an Interested Party.

105. On the joinder of J.M. Rama as a party in this suit; the Plaintiffs’ position is that while serving as Registrar of Titles, Mombasa, Rama allegedly failed to register cautions lodged by the Plaintiffs and facilitated the irregular transfer of LR No. 31283/3 to the 2nd Defendant. They allege collusion and misfeasance in public office.

106. The Legal consideration that this Court stands on is that the office of the Registrar of Titles is a continuing public office. Documents remain with the Registry, not the individual officer. If the issue were only production of records, the proper party would be the Registrar of Titles, Mombasa County (the office).

107. However, the Plaintiffs allege personal acts of misfeasance by Rama. In such circumstances, her presence as a Defendant is necessary to answer those allegations. The Court in “Trusted Society of Human Rights Alliance – Versus -  Mumo Matemu [2014] eKLR” emphasized that joinder is proper where a party’s presence is necessary for complete adjudication of the issues.

108. Because the Plaintiffs seek to hold Rama personally accountable for alleged wrongful acts, she ought to be joined as the 7th Defendant.

109. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the principles in “Departed Asians – Versus - Jaffer Brothers and Kingori – Versus -  Chege (supra)”, I find that Kikora Limited and J.M. Rama are necessary parties to this suit. Kikora Limited is joined as the 6th Defendant, while J.M. Rama is joined as the 7th Defendant, to enable the Court effectually and completely adjudicate upon and settle all questions in controversy.

110. Under this sub – title the Court shall decipher whether the Further Amended Plaint should be admitted. Order 8 Rule 3(1) of the Civil Procedure Rules, 2010 provides:

111. Order 8 Rule 5(1) of the Civil Procedure Rules further empowers the Court to allow amendments “for the purpose of determining the real question in controversy between the parties.”

112. The Court of Appeal in “Central Kenya Ltd – Versus -  Trust Bank Ltd & 4 Others [2000] 2 EA 365” held:

113. Further in the case of “Elijah Kipngeno Arap Bii – Versus -  Kenya Commercial Bank Ltd [2013] eKLR”, the Court emphasized that:

“The power of the court to allow amendments is to ensure that the substantive merits of the case are determined and that multiplicity of proceedings is avoided.”

114. The Plaintiffs seek to file a Further Amended Plaint to introduce claims against Kikora Limited and J.M. Rama, following their discovery of transactions involving LR No. 31283/1 and the alleged irregular transfer of LR No. 31283/3. The amendments are not cosmetic; they go to the heart of the dispute—ownership, validity of transfers, and alleged misfeasance in public office. The Defendants argue that the amendment will alter the nature of the suit and prejudice them. However, the law is clear that mere inconvenience or the need to file a further defence is not prejudice in law. Prejudice must mean an injustice that cannot be compensated by costs or adjournment. The amendments are sought before trial has commenced, and no evidence has been taken. This is the proper stage for amendments to ensure all issues are before the Court.

115. It is my conceded opinion that the further amended plaint is necessary to bring all the relevant parties before the Court, capture the real question in controversy and avoid a multiplicity of suits. The Defendants will suffer no prejudice that cannot be compensated by costs or by being granted leave to respond.

116. I am satisfied that the Further Amended Plaint is necessary for the just determination of the dispute. Guided by Order 8 Rules 3 and 5 of the Civil Procedure Rules, and the principles in “Central Kenya Ltd – Versus - Trust Bank Ltd (Supra)” and “Elijah Kipngeno Arap Bii – Versus - KCB Ltd (Supra)”, I allow the Plaintiffs’ application. The Further Amended Plaint annexed to the application shall be deemed duly filed and served upon payment of requisite court fees. The Defendants are granted 14 days to file their responses.

117. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus -  Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR”, the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR”, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances.

118. On the Chamber Summons Application dated 5th March, 2025 for joinder of Kikora Limited as an Interested Party, the Court has found that Kikora is a necessary party but as a Defendant, not as an Interested Party. Thus, Kikora partially succeeds (it is joined) but not in the capacity it sought. In such circumstances, the fairest order is that each party bears its own costs of the Chamber Summons.

119. On the Notice of Motion application dated 5th June, 2025 by the Plaintiffs for discovery and joinder, the Plaintiffs have succeeded in obtaining discovery orders, joinder of Kikora Ltd and J.M. Rama as Defendants, and leave to amend their Plaint. This application has substantially succeeded. Therefore, costs of the Notice of Motion shall be borne by the 1st and 2nd Defendants and Kikora Ltd, jointly and severally, as they opposed the application.

120. On the Preliminary Objection dated 10th April, 2025 by some of the Plaintiffs against Kikora Limited’s application, the Court has found that the Preliminary Objection did not meet the Mukisa Biscuit test and was unmerited. Accordingly, costs of the Preliminary Objection shall be borne by the Plaintiffs who raised it payable to Kikora Limited.

121. In conclusion guided by Section 27 of the Civil Procedure Act and the principle that costs follow the event, I direct that each party bears its own costs of the Chamber Summons; the Plaintiffs shall have the costs of the Notice of Motion against the 1st and 2nd Defendants and Kikora Ltd; and the costs of the Preliminary Objection shall be borne by the Plaintiffs who raised it.

122. Upon considering the Plaintiffs’ Notice of Motion dated 5th June 2025, the Intended Interested Party’s Chamber Summons dated 5th March 2025, the Preliminary Objection dated 10th April 2025, the affidavits, submissions and authorities cited, the Court makes the following findings and orders:-

(a) Mr. Daniel Disii, the Court Assistant.

(b) Mr. Makadina Advocate holding brief for Mr. Oluga Advocate for the 1st, 3rd, 4th, 5th, 6th, 7th, 8th, 13th, 14th, 15th, 16th, 17th, 18th & 19th Plaintiffs.

(c) Mr. Mwangi Kihira Advocate for the 2nd, 9th, 10th, 11th, 12th & 20th Plaintiffs.

(d) M/s. Amina Advocate holding brief for Mr. Khalid Salim Advocate for the 1st Defendant.

(e) Mr. Onsongo Advocate for the 2nd Defendant.

(f) No appearance for the 3rd & 5th Defendants.

(g) Mr. Wagah Advocate for the 4th & 7th Defendants.

(h) Mr. Lusi Advocate for the 6th Defendant.