This ruling is in respect of the Proposed Interested parties/Applicant’s Notice of Motion application dated 26th June, 2025 which seeks the following orders:
a. THAT the Applicants be enjoined as necessary parties in MOMBASA ELC NO 164 of 1999 in their individual capacities as Interested Parties.
b. THAT conservatory orders do issue restraining any and all dealings in respect of the estate properties known as KILIFI/MTWAPA 497, KILIFI/MTWAPA 1209, KILIF MTWAPA/1210, KILIFI/MTWAPA/498, KILIFI/MTWAPA/499, KILIFI/MTWAPA/1239, KILIFI/MTWAPA/1240, KILIFI/MTWAPA/1241, KILIFI/MTWAPA/503, KILIFI/MTWAPA/504 and all resultant titled subdivisions, whether by way of transfer, subdivision, construction, or otherwise pending the hearing and determination of this suit.
c. That the costs of this Application be provided for.
The application is supported by the annexed affidavit of Mustafa A Abdalla, sworn on 26th June, 2025. He deponed that the intended interested parties are beneficiaries as heirs of the properties of the Estate of Abdalla Kheri, deceased, the subject matter of Mombasa ELC 164 of 1999. He deponed that the intended interested parties are adversely affected by the unresolved matters in this suit. He deponed that the Applicants stand to suffer prejudice unless the orders sought in the application are allowed.
James Mugaya Waititu, the Interested Party, filed a Replying Affidavit sworn on 27th October, 2025. He deponed that he is a bona fide purchaser for value and the registered proprietor of KILIFI/MTWAPA/9529 and he opposed the application. It was his deposition that this suit was dismissed on 20th March, 2017 and there is no suit capable of sustaining the present application. It was his deposition that the applicants have no locus-standi to challenge dealings in registered land. He deponed that the application is fatally defective and should be dismissed with costs.
PROPOSED INTERESTED PARTIES SUBMISSIONS
Counsel for the proposed interested parties filed submissions dated 15th December, 2025. It was counsel’s submission that the proceedings show that the matter first came up in court on 17th June, 1999 and last on 27th February, 2017 before Hon, E. Kagoni SRM with the following remarks: “’Parties absent. Mention notice served. Left for dismissal on 20th March, 2017.” Counsel submitted that there are no further orders on 20th March, 2017 or thereafter confirming that the suit was never dismissed.
Counsel submitted that the Plaint lists the Applicants as heirs of the Estate of Abdalla Kheri, deceased and thus the application for joinder is merited. Counsel relied on the cases of Muruatetu vs KNCHR & 2 Others [2016] KESC 12 (KLR) and Mbula Muoki Ndolo & Another vs Kenya Power and Lighting Company Limited [2017] eKLR.
INTERESTED PARTY’S SUBMISSIONS
Counsel for the interested parties filed submissions dated 28th January, 2026 and identified the following issues for determination:
a. Whether ELC No 164 of 1999 was dismissed on 20th March, 2017?
b. Whether joinder and conservatory orders can issue in a dismissed suit?
c. Whether the prolonged delay renders the Applicants disentitled to discretionary relief?
d. Whether the Application amounts to an abuse of the court process?
Counsel submitted that ELC 164 of 1999 was dismissed on 20th March, 2017 and the suit has never been reinstated. Counsel submitted that joinder and conservatory orders cannot issue in a dismissed suit and even if the suit were alive, the delay is inordinate and inexcusable. Counsel submitted that the Applicants have shown no sufficient cause and the application is legally incompetent and an abuse of the court process. Counsel prayed that the Notice of Motion application be struck out and or dismissed with costs. Reliance was placed on provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules and the following cases: Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1 and Ivita vs Kyumbu (1984) KLR 441.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether the Applicants should be enjoined in this suit as interested parties?
b. Whether the Applicants are entitled to conservatory orders?
The rules governing joinder of a party to a suit are found in Order 1 of the Civil Procedure Rules. Order1 Rule 10 provides that:-
“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
The Black’s Law Dictionary 8th Edition defines an “interested party” as
“A party who has a recognizable stake (and therefore standing) in the matter.”
It also defines a “Necessary Party” as
“a party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings.”
The Supreme Court in the case of Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR stated:
“The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2012, defines an interested party as “a person or entity that has an identifiable stake or legal interest in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation”. From the foregoing it is clear that an interested party as opposed to an amicus curiae or a friend of the court may not be wholly indifferent to the outcome of the proceedings in question. He is a person with an identifiable stake or legal interest in the proceedings hence may not be said to be wholly non-partisan as he is likely to urge the court to make a determination favourable to his stake in the proceedings…. It is however a requirement that a person who intends to be joined to existing legal proceedings ought to show that he has “an identifiable stake or legal interest in the proceedings before the court.”
In determining whether an interested party can be joined to a civil suit, a party ought to demonstrate that their presence is necessary to effectually and completely to adjudicate upon and settle all questions involved in the suit, but their absence would not result in the dismissal of the suit and that they must have an identifiable stake or legal rights or duties in the suit.
The Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR broke down who an interested party is as follows:-
“In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:-
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
Similarly, in the case of Meme v. Republic,[2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:-
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.”
We ask ourselves the following questions: (a) what is the intended interested party’s stake and relevance in the proceedings? and (b) will the intended interested party suffer any prejudice if denied joinder?”
The interested party contends that this suit was dismissed on 20th March, 2017 and there is no suit capable of sustaining the present application. The proposed interested parties on the other hand contend that came up in court on 17th June, 1999 and last on 27th February, 2017 before Hon, E. Kagoni SRM with the following remarks: “’Parties absent. Mention notice served. Left for dismissal on 20th March, 2017.” Counsel for the proposed interested parties/applicants submitted that there are no further orders on 20th March, 2017 or thereafter confirming that the suit was never dismissed.
This court finds that it is a fact that the suit was not dismissed on 20th March, 2017. The proposed interested parties contend that they are beneficiaries as heirs to the Estate of Abdalla Kheri (deceased) and are adversely affected by the unresolved matters in this suit.
Sections 107, 108 and 109 of the Evidence Act provide as follows:
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.”
The court has looked at the Plaint dated 5th February, 1999 and the Plaintiff contended that at all material times, the 1st Defendant was the Administrator of the Estate of Abdalla Kheri (deceased) until 24th April, 1995 when the Court revoked the Grant of Letters of Administration and appointed the Plaintiff as the Administrator of the Estate of the deceased. The Plaintiff contended that sometime between 1991 and 1993, the 1st Defendant without the authority of the Court disposed off the properties of the deceased. The Plaintiff further contended that the deceased left the following people surviving him: Mustafa Abdalla Kheir, Abdulrahman Abdalla Kheir, Ahmed Abdalla Kheir, Omar Abdalla Kheir, Mwanaisha Abdalla Kheir, Halima Abdalla Kheir and Mwanahawa Abdalla Kheir.
This court finds that the identifiable stake or legal interest in these proceedings has been proved as some of the proposed interested parties have been listed in the Plaint dated 5th February, 1999 as surviving Abdalla Kheri (deceased).
The proposed interested parties have also sought conservatory orders from this court. The law governing the issuance of conservatory orders is well settled. In Judicial Service Commission v Speaker of the National Assembly & Another (2013) eKLR, conservatory orders were defined as follows:
“Conservatory orders, in my view, are not ordinary civil remedies but are remedies provided for under the Constitution, the supreme law of the land. They are not remedies between one individual against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.” (Emphasis mine)
In Centre for Rights Education & Awareness (CREAW) & Another vs. Speaker of the National Assembly & 2 Others (2017) eKLR, the court held that;
“A party who moves the court seeking conservatory orders must show to the satisfaction of the court that his or her rights are under threat of violation, are being violated, or will be violated, and that such violations, or threatened violation, is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent the violation of rights and fundamental freedoms and preserve the subject matter pending the hearing and determination of a pending cause or petition.”
In Gitirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others (2014) eKLR, the Supreme Court outlined the principles governing the grant of interim conservatory orders as follows:
“Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case, or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes.” [Emphasis mine]
This court finds that the Notice of Motion application dated 26th June, 2025 partly succeeds and I therefore issue the following orders:
a. The Applicants are hereby enjoined as interested parties in MOMBASA ELC NO 164 of 1999.
b. Each party shall bear their own costs in respect of the Notice of Motion application dated 26th June, 2025.
a. THAT the Applicants be enjoined as necessary parties in MOMBASA ELC NO 164 of 1999 in their individual capacities as Interested Parties.
b. THAT conservatory orders do issue restraining any and all dealings in respect of the estate properties known as KILIFI/MTWAPA 497, KILIFI/MTWAPA 1209, KILIF MTWAPA/1210, KILIFI/MTWAPA/498, KILIFI/MTWAPA/499, KILIFI/MTWAPA/1239, KILIFI/MTWAPA/1240, KILIFI/MTWAPA/1241, KILIFI/MTWAPA/503, KILIFI/MTWAPA/504 and all resultant titled subdivisions, whether by way of transfer, subdivision, construction, or otherwise pending the hearing and determination of this suit.
c. That the costs of this Application be provided for.
The application is supported by the annexed affidavit of Mustafa A Abdalla, sworn on 26th June, 2025. He deponed that the intended interested parties are beneficiaries as heirs of the properties of the Estate of Abdalla Kheri, deceased, the subject matter of Mombasa ELC 164 of 1999. He deponed that the intended interested parties are adversely affected by the unresolved matters in this suit. He deponed that the Applicants stand to suffer prejudice unless the orders sought in the application are allowed.
James Mugaya Waititu, the Interested Party, filed a Replying Affidavit sworn on 27th October, 2025. He deponed that he is a bona fide purchaser for value and the registered proprietor of KILIFI/MTWAPA/9529 and he opposed the application. It was his deposition that this suit was dismissed on 20th March, 2017 and there is no suit capable of sustaining the present application. It was his deposition that the applicants have no locus-standi to challenge dealings in registered land. He deponed that the application is fatally defective and should be dismissed with costs.
PROPOSED INTERESTED PARTIES SUBMISSIONS
Counsel for the proposed interested parties filed submissions dated 15th December, 2025. It was counsel’s submission that the proceedings show that the matter first came up in court on 17th June, 1999 and last on 27th February, 2017 before Hon, E. Kagoni SRM with the following remarks: “’Parties absent. Mention notice served. Left for dismissal on 20th March, 2017.” Counsel submitted that there are no further orders on 20th March, 2017 or thereafter confirming that the suit was never dismissed.
Counsel submitted that the Plaint lists the Applicants as heirs of the Estate of Abdalla Kheri, deceased and thus the application for joinder is merited. Counsel relied on the cases of Muruatetu vs KNCHR & 2 Others [2016] KESC 12 (KLR) and Mbula Muoki Ndolo & Another vs Kenya Power and Lighting Company Limited [2017] eKLR.
INTERESTED PARTY’S SUBMISSIONS
Counsel for the interested parties filed submissions dated 28th January, 2026 and identified the following issues for determination:
a. Whether ELC No 164 of 1999 was dismissed on 20th March, 2017?
b. Whether joinder and conservatory orders can issue in a dismissed suit?
c. Whether the prolonged delay renders the Applicants disentitled to discretionary relief?
d. Whether the Application amounts to an abuse of the court process?
Counsel submitted that ELC 164 of 1999 was dismissed on 20th March, 2017 and the suit has never been reinstated. Counsel submitted that joinder and conservatory orders cannot issue in a dismissed suit and even if the suit were alive, the delay is inordinate and inexcusable. Counsel submitted that the Applicants have shown no sufficient cause and the application is legally incompetent and an abuse of the court process. Counsel prayed that the Notice of Motion application be struck out and or dismissed with costs. Reliance was placed on provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules and the following cases: Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1 and Ivita vs Kyumbu (1984) KLR 441.
ANALYSIS AND DETERMINATION
The issues for determination are:
a. Whether the Applicants should be enjoined in this suit as interested parties?
b. Whether the Applicants are entitled to conservatory orders?
The rules governing joinder of a party to a suit are found in Order 1 of the Civil Procedure Rules. Order1 Rule 10 provides that:-
“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
The Black’s Law Dictionary 8th Edition defines an “interested party” as
“A party who has a recognizable stake (and therefore standing) in the matter.”
It also defines a “Necessary Party” as
“a party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings.”
The Supreme Court in the case of Judicial Service Commission v Speaker of the National Assembly & another [2013] eKLR stated:
“The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2012, defines an interested party as “a person or entity that has an identifiable stake or legal interest in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation”. From the foregoing it is clear that an interested party as opposed to an amicus curiae or a friend of the court may not be wholly indifferent to the outcome of the proceedings in question. He is a person with an identifiable stake or legal interest in the proceedings hence may not be said to be wholly non-partisan as he is likely to urge the court to make a determination favourable to his stake in the proceedings…. It is however a requirement that a person who intends to be joined to existing legal proceedings ought to show that he has “an identifiable stake or legal interest in the proceedings before the court.”
In determining whether an interested party can be joined to a civil suit, a party ought to demonstrate that their presence is necessary to effectually and completely to adjudicate upon and settle all questions involved in the suit, but their absence would not result in the dismissal of the suit and that they must have an identifiable stake or legal rights or duties in the suit.
The Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR broke down who an interested party is as follows:-
“In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:-
“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…”
Similarly, in the case of Meme v. Republic,[2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:-
“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;
(ii) joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iii) joinder to prevent a likely course of proliferated litigation.”
We ask ourselves the following questions: (a) what is the intended interested party’s stake and relevance in the proceedings? and (b) will the intended interested party suffer any prejudice if denied joinder?”
The interested party contends that this suit was dismissed on 20th March, 2017 and there is no suit capable of sustaining the present application. The proposed interested parties on the other hand contend that came up in court on 17th June, 1999 and last on 27th February, 2017 before Hon, E. Kagoni SRM with the following remarks: “’Parties absent. Mention notice served. Left for dismissal on 20th March, 2017.” Counsel for the proposed interested parties/applicants submitted that there are no further orders on 20th March, 2017 or thereafter confirming that the suit was never dismissed.
This court finds that it is a fact that the suit was not dismissed on 20th March, 2017. The proposed interested parties contend that they are beneficiaries as heirs to the Estate of Abdalla Kheri (deceased) and are adversely affected by the unresolved matters in this suit.
Sections 107, 108 and 109 of the Evidence Act provide as follows:
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.”
The court has looked at the Plaint dated 5th February, 1999 and the Plaintiff contended that at all material times, the 1st Defendant was the Administrator of the Estate of Abdalla Kheri (deceased) until 24th April, 1995 when the Court revoked the Grant of Letters of Administration and appointed the Plaintiff as the Administrator of the Estate of the deceased. The Plaintiff contended that sometime between 1991 and 1993, the 1st Defendant without the authority of the Court disposed off the properties of the deceased. The Plaintiff further contended that the deceased left the following people surviving him: Mustafa Abdalla Kheir, Abdulrahman Abdalla Kheir, Ahmed Abdalla Kheir, Omar Abdalla Kheir, Mwanaisha Abdalla Kheir, Halima Abdalla Kheir and Mwanahawa Abdalla Kheir.
This court finds that the identifiable stake or legal interest in these proceedings has been proved as some of the proposed interested parties have been listed in the Plaint dated 5th February, 1999 as surviving Abdalla Kheri (deceased).
The proposed interested parties have also sought conservatory orders from this court. The law governing the issuance of conservatory orders is well settled. In Judicial Service Commission v Speaker of the National Assembly & Another (2013) eKLR, conservatory orders were defined as follows:
“Conservatory orders, in my view, are not ordinary civil remedies but are remedies provided for under the Constitution, the supreme law of the land. They are not remedies between one individual against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.” (Emphasis mine)
In Centre for Rights Education & Awareness (CREAW) & Another vs. Speaker of the National Assembly & 2 Others (2017) eKLR, the court held that;
“A party who moves the court seeking conservatory orders must show to the satisfaction of the court that his or her rights are under threat of violation, are being violated, or will be violated, and that such violations, or threatened violation, is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent the violation of rights and fundamental freedoms and preserve the subject matter pending the hearing and determination of a pending cause or petition.”
In Gitirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others (2014) eKLR, the Supreme Court outlined the principles governing the grant of interim conservatory orders as follows:
“Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case, or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes.” [Emphasis mine]
This court finds that the Notice of Motion application dated 26th June, 2025 partly succeeds and I therefore issue the following orders:
a. The Applicants are hereby enjoined as interested parties in MOMBASA ELC NO 164 of 1999.
b. Each party shall bear their own costs in respect of the Notice of Motion application dated 26th June, 2025.