This ruling is in respect of the Defendant’s Notice of Motion application dated 27th October, 2025 which seeks the following orders:
a. Spent
b. The Honourable Court be pleased to order that the National Land Commission be joined as an Interested Party to the proceedings herein.
c. Spent
d. There be no order as to costs in this Application
The application is supported by the annexed affidavit of Mohamed S Rashid, a Director of the Defendant, sworn on 27th October, 2025. He deponed that the Defendant has been denied the opportunity to renew its lease by the Plaintiffs without a fair assessment of the proposed renewal. The Defendant’s director deponed that the Defendant’s Statement of Defence and Counterclaim has raised substantial points of law relating to the National Land Commission’s role in regulating extension of leases. He deponed that the involvement of the National Land Commission is necessary to assist this court in reaching a just and fair determination.
Salim Soud Ali Salim Khalfan, the 2nd Plaintiff, filed a Replying Affidavit sworn on 20th November, 2025. He deponed that the Defendant seeks to drag the National Land Commission into this dispute alleging that the dispute touches on public land yet the property known as Mombasa/ Block XXV/3 is private land under a registered freehold title belonging to the Plaintiffs as trustees of the Wakf of Sheikha Binti Ali.
The 2nd Plaintiff deponed that the National Land Commission has no jurisdiction over disputes relating to private leases or expired contractual tenancies. He deponed that the Plaintiffs are seeking a declaration that the lease has expired, an order of possession and eviction against the Defendant. The 2nd Plaintiff asked the court to dismiss the application with costs.
The Plaintiffs also filed Grounds of Opposition dated 20th November, 2025. They stated that the application is an abuse of court process and should be dismissed with costs.
DEFENDANT’S SUBMISSIONS
Counsel for the Defendant filed submissions dated 5th February, 2026 and identified the following issues for determination:
a. Whether the National Land Commission is a necessary party for the effectual and complete adjudication of the issues in dispute?
b. Whether the joinder of the National Land Commission ousts or interferes with the jurisdiction of this Honourable Court?
c. Whether the Plaintiffs will suffer any prejudice if the National Land Commission is joined as an interested party?
On the first issue, counsel submitted that the participation of the National Land Commission as an interested party will therefore assist this Honorable Court in settling all questions arising from the leasehold tenure at issue. Counsel relied on Order 1 Rule 10 (2) of the Civil Procedure Rules and the cases of Francis Karioki Muruatetu & another vs Republic & 5 others Petition No 15 as consolidated with No 16 of 2013 [2016] eKLR, Communications Commission of Kenya and 4 others vs Royal Media Services Limited & 7 others Petition No 15 of 2014 eKLR and Skov Estate Limited & 5 others vs Agricultural Development Corporation & another [2015] eKLR.
On the second issue, counsel relied on Article 162 (2) (b) of the Constitution of Kenya and Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Counsel submitted that the National Land Commission does not adjudicate disputes or replace the Court’s constitutional mandate. Counsel submitted that the Defendant seeks the participation of the National Land Commission so that this Honorable Court may be properly assisted on issues of land tenure governance and lease administration which transcend purely private contractual agreements.
On the third issue, counsel submitted that the Plaintiffs have not demonstrated any prejudice and they will still prosecute their claim fully and the court will still determine the matter on merits. Counsel relied on the case of Karani & 2 others vs Karani & 2 others; Murage & another (Intended Defendant) [2025] KEELC 5341 (KLR). Counsel asked the court to grant the orders sought in the application.
PLAINTIFFS SUBMISSION
Counsel filed submission dated 10th February, 2026 and identified the following issues for determination:
a. Whether the National Land Commission has a legally identifiable and proximate interest in the subject matter of this suit?
b. Whether the mandate of the National Land Commission extends to private land and expired private leases?
c. Whether the Defendant has met the legal threshold for joinder of an interested party?
d. Whether the application is a delaying tactic and an abuse of the court process?
On the first issue, counsel submitted that the National Land Commission was not a party to the lease, did not allocate the land, does not administer it and has no contractual or proprietary interest in the suit property. Counsel submitted that the Defendant’s attempt to involve the National Land Commission is not anchored on any identifiable legal interest. Reliance was placed on Order 1 Rule 10 (2) of the Civil Procedure Rules and the following cases: Francis Karioki Muruatetu & Another vs Republic & 5 others [2016] eKLR and Skov Estate Limited & 5 others vs Agricultural Development Corporation & Another [2015] eKLR.
On the second issue, counsel submitted that it is wrong for the Defendant to argue that although the land is private the lease hold tenure attracts the mandate of the National Land Commission. Counsel submitted that the argument has no constitutional or statutory foundation. Reliance was placed on Article 67 (2) of the Constitution of Kenya, Article 162 (2) (b) of the Constitution of Kenya, Section 5 of the National Land Commission Act and the case of Communications Commission of Kenya & 4 others vs Royal Media Services Ltd & 7 others [2014] eKLR. Counsel submitted that the central issue is the expiry of the lease by effluxion of time.
Counsel submitted that the joinder of the National Land Commission at this advanced stage will inevitably occasion delay, invite further affidavits and derail the hearing of the main suit. Counsel relied on Article 159 (2) (b) of the Constitution of Kenya and Sections 1A and 1B of the Civil Procedure Act. Counsel asked the court to dismiss the application with costs and direct that the suit proceeds to hearing forthwith.
ANALYSIS AND DETERMINATION
The issue for determination is whether the National Land Commission be should be joined as an Interested Party to the suit. The law on joinder of parties is found in Order 1 Rule 10(2) of the Civil Procedure Rules states as follows: -
“The court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.”
In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR, the Supreme Court in defining an interested party stated thus;
“…while an interested party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the Court, having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom. ‘Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. On the other hand, an amicus is only interested in the Court making a decision of professional integrity. An amicus has no interest in the decision being made either way, but seeks that it be legal, well informed, and in the interest of justice and the public expectation. As a ‘friend’ of the Court, his [or her] cause is to ensure that a legal and legitimate decision is achieved.”
The Supreme court of Kenya in Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR after an analysis of legal provisions and case law set out factors for consideration in an application for joinder as an Interested Party. The Learned Judges held as follows;
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
I. The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
II. The prejudice to be suffered by the intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
III. Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
It is the Defendant’s contention that it’s Statement of Defence and Counterclaim has raised substantial points of law relating to the National Land Commission’s role in regulating extension of leases. The Defendant contends that the involvement of the National Land Commission is necessary to assist this court in reaching a just and fair determination. The Plaintiffs on the other hand contend that the Defendant seeks to drag the National Land Commission into this dispute alleging that the dispute touches on public land yet the property known as Mombasa/ Block XXV/3 is private land under a registered freehold title belonging to the Plaintiffs as trustees of the Wakf of Sheikha Binti Ali. The Plaintiffs contend that the National Land Commission has no jurisdiction over disputes relating to private leases or expired contractual tenancies.
Article 67 (2) of the Constitution of Kenya provides as follows:
The functions of the National Land Commission are:
a. to manage public land on behalf of the national and county governments;
b. to recommend a national land policy to the national government;
c. to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
d. to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
e. to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
f. to encourage the application of traditional dispute resolution mechanisms in land conflicts;
g. to assess tax on land and premiums on immovable property in any area designated by law; and
h. to monitor and have oversight responsibilities over land use planning throughout the country.
In the case of Karaini Investment Limited v National Land Commission & 2 others [2021] KEELC 3009 (KLR), the Court in analyzing the role of the National Land Commission pronounced as follows at paragraphs 31 and 32:
31. The title over the Suit Property was issued under the Government Lands Act. Through the conveyance dated 21/12/1970, Abdul Khaliq transferred his interest in the Suit Property to Njeru Munge. The conveyance mentioned that through a certificate of sale dated 30/6/1958 issued by the Executive Officer of the Resident Magistrate’s Court at Nairobi in Civil Suit Number 5160 of 1957, Abdul Khaliq became vested as beneficial owner of fee simple of the Suit Property. If NLC were to have inquired into the propriety of the grant over the Suit property then it would only have inquired into how the land was initially allocated to the first allottee when it constituted public land. By the time the suit land was transferred to Abdul Khaliq, it did not constitute public land. When the land was transferred to the Petitioner in 1986 it had ceased to be public land and NLC therefore could not have determined the dispute between the Petitioner and the Estate of the late Njeru Munge.
32. Based on its legal mandate prescribed by the law, NLC did not have jurisdiction to determine whether the Suit Property was lawfully transferred from the late Njeru Munge to seven other individuals and subsequently to the Petitioner. Additionally, NLC could not make a determination as to whether or not the late Njeru Munge held the Suit Property in trust for the other members of the Petitioner.
This court finds that the issues in contention in this suit do not involve public land. The Defendant in it’s counterclaim contends that it was denied the right to extend the lease without being heard and or afforded any reasons. In fact the Defendant states as follows at paragraph 2 of its statement of defence dated 6th March, 2025: “…..The Plaintiffs’ freehold rights, as superior Lessors are not properly exclusive registered owners of the property known as Title No. Mombasa/Block XXV/3 (suit property) and are subject to the provisions of the Constitution of Kenya and in particular Articles 60,61,64,65 and 67 of the Constitution of Kenya.”
This court finds that the Notice of Motion application dated 27th October, 2025 lacks merit and is hereby dismissed with costs.
a. Spent
b. The Honourable Court be pleased to order that the National Land Commission be joined as an Interested Party to the proceedings herein.
c. Spent
d. There be no order as to costs in this Application
The application is supported by the annexed affidavit of Mohamed S Rashid, a Director of the Defendant, sworn on 27th October, 2025. He deponed that the Defendant has been denied the opportunity to renew its lease by the Plaintiffs without a fair assessment of the proposed renewal. The Defendant’s director deponed that the Defendant’s Statement of Defence and Counterclaim has raised substantial points of law relating to the National Land Commission’s role in regulating extension of leases. He deponed that the involvement of the National Land Commission is necessary to assist this court in reaching a just and fair determination.
Salim Soud Ali Salim Khalfan, the 2nd Plaintiff, filed a Replying Affidavit sworn on 20th November, 2025. He deponed that the Defendant seeks to drag the National Land Commission into this dispute alleging that the dispute touches on public land yet the property known as Mombasa/ Block XXV/3 is private land under a registered freehold title belonging to the Plaintiffs as trustees of the Wakf of Sheikha Binti Ali.
The 2nd Plaintiff deponed that the National Land Commission has no jurisdiction over disputes relating to private leases or expired contractual tenancies. He deponed that the Plaintiffs are seeking a declaration that the lease has expired, an order of possession and eviction against the Defendant. The 2nd Plaintiff asked the court to dismiss the application with costs.
The Plaintiffs also filed Grounds of Opposition dated 20th November, 2025. They stated that the application is an abuse of court process and should be dismissed with costs.
DEFENDANT’S SUBMISSIONS
Counsel for the Defendant filed submissions dated 5th February, 2026 and identified the following issues for determination:
a. Whether the National Land Commission is a necessary party for the effectual and complete adjudication of the issues in dispute?
b. Whether the joinder of the National Land Commission ousts or interferes with the jurisdiction of this Honourable Court?
c. Whether the Plaintiffs will suffer any prejudice if the National Land Commission is joined as an interested party?
On the first issue, counsel submitted that the participation of the National Land Commission as an interested party will therefore assist this Honorable Court in settling all questions arising from the leasehold tenure at issue. Counsel relied on Order 1 Rule 10 (2) of the Civil Procedure Rules and the cases of Francis Karioki Muruatetu & another vs Republic & 5 others Petition No 15 as consolidated with No 16 of 2013 [2016] eKLR, Communications Commission of Kenya and 4 others vs Royal Media Services Limited & 7 others Petition No 15 of 2014 eKLR and Skov Estate Limited & 5 others vs Agricultural Development Corporation & another [2015] eKLR.
On the second issue, counsel relied on Article 162 (2) (b) of the Constitution of Kenya and Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Counsel submitted that the National Land Commission does not adjudicate disputes or replace the Court’s constitutional mandate. Counsel submitted that the Defendant seeks the participation of the National Land Commission so that this Honorable Court may be properly assisted on issues of land tenure governance and lease administration which transcend purely private contractual agreements.
On the third issue, counsel submitted that the Plaintiffs have not demonstrated any prejudice and they will still prosecute their claim fully and the court will still determine the matter on merits. Counsel relied on the case of Karani & 2 others vs Karani & 2 others; Murage & another (Intended Defendant) [2025] KEELC 5341 (KLR). Counsel asked the court to grant the orders sought in the application.
PLAINTIFFS SUBMISSION
Counsel filed submission dated 10th February, 2026 and identified the following issues for determination:
a. Whether the National Land Commission has a legally identifiable and proximate interest in the subject matter of this suit?
b. Whether the mandate of the National Land Commission extends to private land and expired private leases?
c. Whether the Defendant has met the legal threshold for joinder of an interested party?
d. Whether the application is a delaying tactic and an abuse of the court process?
On the first issue, counsel submitted that the National Land Commission was not a party to the lease, did not allocate the land, does not administer it and has no contractual or proprietary interest in the suit property. Counsel submitted that the Defendant’s attempt to involve the National Land Commission is not anchored on any identifiable legal interest. Reliance was placed on Order 1 Rule 10 (2) of the Civil Procedure Rules and the following cases: Francis Karioki Muruatetu & Another vs Republic & 5 others [2016] eKLR and Skov Estate Limited & 5 others vs Agricultural Development Corporation & Another [2015] eKLR.
On the second issue, counsel submitted that it is wrong for the Defendant to argue that although the land is private the lease hold tenure attracts the mandate of the National Land Commission. Counsel submitted that the argument has no constitutional or statutory foundation. Reliance was placed on Article 67 (2) of the Constitution of Kenya, Article 162 (2) (b) of the Constitution of Kenya, Section 5 of the National Land Commission Act and the case of Communications Commission of Kenya & 4 others vs Royal Media Services Ltd & 7 others [2014] eKLR. Counsel submitted that the central issue is the expiry of the lease by effluxion of time.
Counsel submitted that the joinder of the National Land Commission at this advanced stage will inevitably occasion delay, invite further affidavits and derail the hearing of the main suit. Counsel relied on Article 159 (2) (b) of the Constitution of Kenya and Sections 1A and 1B of the Civil Procedure Act. Counsel asked the court to dismiss the application with costs and direct that the suit proceeds to hearing forthwith.
ANALYSIS AND DETERMINATION
The issue for determination is whether the National Land Commission be should be joined as an Interested Party to the suit. The law on joinder of parties is found in Order 1 Rule 10(2) of the Civil Procedure Rules states as follows: -
“The court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.”
In Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR, the Supreme Court in defining an interested party stated thus;
“…while an interested party has a ‘stake/interest’ directly in the case, an amicus’s interest is its ‘fidelity’ to the law: that an informed decision is reached by the Court, having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom. ‘Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. On the other hand, an amicus is only interested in the Court making a decision of professional integrity. An amicus has no interest in the decision being made either way, but seeks that it be legal, well informed, and in the interest of justice and the public expectation. As a ‘friend’ of the Court, his [or her] cause is to ensure that a legal and legitimate decision is achieved.”
The Supreme court of Kenya in Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR after an analysis of legal provisions and case law set out factors for consideration in an application for joinder as an Interested Party. The Learned Judges held as follows;
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
I. The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
II. The prejudice to be suffered by the intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.
III. Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
It is the Defendant’s contention that it’s Statement of Defence and Counterclaim has raised substantial points of law relating to the National Land Commission’s role in regulating extension of leases. The Defendant contends that the involvement of the National Land Commission is necessary to assist this court in reaching a just and fair determination. The Plaintiffs on the other hand contend that the Defendant seeks to drag the National Land Commission into this dispute alleging that the dispute touches on public land yet the property known as Mombasa/ Block XXV/3 is private land under a registered freehold title belonging to the Plaintiffs as trustees of the Wakf of Sheikha Binti Ali. The Plaintiffs contend that the National Land Commission has no jurisdiction over disputes relating to private leases or expired contractual tenancies.
Article 67 (2) of the Constitution of Kenya provides as follows:
The functions of the National Land Commission are:
a. to manage public land on behalf of the national and county governments;
b. to recommend a national land policy to the national government;
c. to advise the national government on a comprehensive programme for the registration of title in land throughout Kenya;
d. to conduct research related to land and the use of natural resources, and make recommendations to appropriate authorities;
e. to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress;
f. to encourage the application of traditional dispute resolution mechanisms in land conflicts;
g. to assess tax on land and premiums on immovable property in any area designated by law; and
h. to monitor and have oversight responsibilities over land use planning throughout the country.
In the case of Karaini Investment Limited v National Land Commission & 2 others [2021] KEELC 3009 (KLR), the Court in analyzing the role of the National Land Commission pronounced as follows at paragraphs 31 and 32:
31. The title over the Suit Property was issued under the Government Lands Act. Through the conveyance dated 21/12/1970, Abdul Khaliq transferred his interest in the Suit Property to Njeru Munge. The conveyance mentioned that through a certificate of sale dated 30/6/1958 issued by the Executive Officer of the Resident Magistrate’s Court at Nairobi in Civil Suit Number 5160 of 1957, Abdul Khaliq became vested as beneficial owner of fee simple of the Suit Property. If NLC were to have inquired into the propriety of the grant over the Suit property then it would only have inquired into how the land was initially allocated to the first allottee when it constituted public land. By the time the suit land was transferred to Abdul Khaliq, it did not constitute public land. When the land was transferred to the Petitioner in 1986 it had ceased to be public land and NLC therefore could not have determined the dispute between the Petitioner and the Estate of the late Njeru Munge.
32. Based on its legal mandate prescribed by the law, NLC did not have jurisdiction to determine whether the Suit Property was lawfully transferred from the late Njeru Munge to seven other individuals and subsequently to the Petitioner. Additionally, NLC could not make a determination as to whether or not the late Njeru Munge held the Suit Property in trust for the other members of the Petitioner.
This court finds that the issues in contention in this suit do not involve public land. The Defendant in it’s counterclaim contends that it was denied the right to extend the lease without being heard and or afforded any reasons. In fact the Defendant states as follows at paragraph 2 of its statement of defence dated 6th March, 2025: “…..The Plaintiffs’ freehold rights, as superior Lessors are not properly exclusive registered owners of the property known as Title No. Mombasa/Block XXV/3 (suit property) and are subject to the provisions of the Constitution of Kenya and in particular Articles 60,61,64,65 and 67 of the Constitution of Kenya.”
This court finds that the Notice of Motion application dated 27th October, 2025 lacks merit and is hereby dismissed with costs.