Progressive Heritage Limited & another v Mbito alias Chairman & 4 others (Suing on their own behalf and on behalf of all 242 members living and in possession of Kwale/Tiwi Beach Block/ 78 to 140) & another (Environment and Land Case E020 of 2022) [2025] KEELC 5834 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed 242 Tiwi Beach occupants to join a land ownership suit and amend their defence, keeping the Land Registrar and National Land Commission in the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion application dated 18th September 2024 by the Applicants seeking to have parties joined in the suit has any merit
- 2.Whether the parties herein are entitled to the reliefs sought
- 3.Who will bear the costs of the application
Key legal issues
#Joinder of the Land Registrar Kwale, National Land Commission and 242 occupiers
Joinder allowed as necessary and proper parties to effectually and completely adjudicate on ownership of the suit property
The court applied Order 1 Rules 3 and 10(2) and the Civicon and Joseph Njau Kingori principles: a joinder is warranted where there is relief flowing from the party and their presence enables the court to settle all questions. Since the real dispute is ownership and legality of the transfer of title, the state registration bodies and the persons in occupation were satisfied to be necessary parties, avoiding multiplicity of suits.
Leave to amend the Defence and Counter-Claim after close of pleadings and during a part-heard suit
Leave granted; pleadings had closed so leave was required, and the amendment neither introduced a new cause of action nor prejudiced the plaintiffs beyond compensable costs
Order 8 Rule 3 permits amendment at any stage on just terms; Order 2 Rule 13 requires leave after closure of pleadings. Following Eastern Bakery, Tildesley v Harper and Molo v Kenya Railways, the court held amendments should be freely allowed before judgment, that the suit was still at hearing stage, and balanced the scales by granting the plaintiffs corresponding leave to amend and respond.
Costs of the application
Costs in the cause rather than to the successful applicants
While costs ordinarily follow the event under Section 27(1) of the Civil Procedure Act, the court exercised its discretion to defer costs to the outcome of the suit, consistent with the interlocutory and discretionary nature of the joinder and amendment rulings.
Legal principles established
#- Joinder of a party is a discretionary exercise governed by Order 1 Rule 10(2); all a party needs to demonstrate is sufficient interest in the suit, and that interest need not succeed at trial
- Amendments of pleadings should be freely allowed at any stage before judgment if they can be made without injustice that cannot be compensated by costs
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion application found to have merit and allowed
- 2.Applicants granted leave to sue in the Counter-Claim on their own behalf and on behalf of all members living on parcel Kwale/Tiwi Beach Block/78 to 140; all those members joined as Applicants in the suit
- 3.Defendants granted leave to amend the Defence and Counter-Claim and join the Land Registrar Kwale and the National Land Commission as Defendants together with 242 other Applicants as set out in the annexed Amended Defence and Counter-Claim
- 4.Plaintiffs granted corresponding leave to amend the Plaint and issue fresh summons to enter appearance to the Land Registrar Kwale, the Director Land Administration and the National Land Commission within 21 days
- 5.Parties joined under order (b) granted 21 days leave to comply with Orders 7 and 11 of the Civil Procedure Rules, 2010
- 6.Mention on 22nd October 2025 for Pre-Trial Conference under Order 11; hearing date on 21st January 2026
- 7.Costs of the application be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21; Order 1 Rules 3, 8, 12, 13 and 16 and Order 8 of the Civil Procedure Rules, 2010
Relief refused
#None - all prayers sought were granted
The court found the application meritorious
Costs
Costs of the application be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 18th December, 2024 be and is hereby found to have merit and thus allowed.
That the Applicants hereinabove named be and are hereby granted leave to sue in the Counter - Claim on their own behalf and on behalf of all members living on the parcel of land reference no Kwale/Tiwi Beach Block/78 to 140
That the Plaintifis be and are hereby granted corresponding leave to amend the Plaint and issue fresh summons to enter appearance to the said Land Registrar Kwale, THE DIRECTOR LAND ADMINISTRATION and THE NATIONAL LAND COMMISSION - within the next 21 days from this date hereof.
That costs of the application be in the cause.
for a person to be joined in a suit, there ought to be some relief sought against them in respect to the matter. It is also for the court to be able to efiectively adjudicate over the matter.
an amendment of pleadings in general should be allowed before the final Judgement is delivered.
Issues in the judgment
#Date of the Notice of Motion stated inconsistently; the ruling concerns an application dated 18th September 2024 but the final order refers to 18th December 2024
The applicants' submissions describe the Notice of Motion as dated 18th September 2025, conflicting with 18th September 2024 used throughout
Issue framing is inconsistent: the court states it framed three issues but labels the second as 'ISSUE No. C.' and the third as 'ISSUE No. d)'
Further affidavit heading mislabels the deponents as 'Plaintifis/Applicants' although it was sworn by the Defendants' applicant Hamisi Ali Gakurya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Progressive Heritage Limited & another v Mbito alias Chairman & 4 others (Suing on their own behalf and on behalf of all 242 members living and in possession of Kwale/Tiwi Beach Block/ 78 to 140) & another (Environment and Land Case E020 of 2022) [2025] KEELC 5834 (KLR)", Case Analysis (2025). Not stated in the judgment (suit property Kwale/Tiwi Beach Block/78 to 140). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5834/eng@2025-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.