Mwendwa & another (Suing as the Legal Representatives of the Estate of the Late Abrahim M'Kirera M'Ncau alias Abrahim M’Kirera M’Nchauu – Deceased) v Safaricom Plc & another (Environment and Land Case E020 of 2022) [2026] KEELC 3144 (KLR)
The bottom line
#The Environment and Land Court allowed KENHA to stay in Safaricom's land dispute, so the trespass case will now be heard on its merits.
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 amended notice of preliminary objection dated 26/1/2026 meets the threshold of a preliminary objection
- 2.Whether joinder of the 2nd defendant to these proceedings contravenes Section 67(a) of the Kenya Roads Act
- 3.Whether joinder of the 2nd defendant to these proceedings contravenes Section 67(b) of the said Act
Key legal issues
#Whether the notice of preliminary objection met the Mukisa Biscuit threshold
It did; the substantive points were pure points of law requiring no ascertainment of facts through evidence.
The court applied the Mukisa Biscuit definition adopted by the Supreme Court in Hassan Ali Joho. It noted there was no denial of service of the joinder application on KENHA and that the joinder had been disposed of on the premise that all affected parties were properly served. The issues turned on the applicability of Sections 67(a) and (b) to joinder, requiring no factual ascertainment.
Whether joinder of KENHA without prior one-month notice contravened Section 67(a) of the Kenya Roads Act
It did not. Section 67(a) governs commencement of actions against the Authority; a party joined by court order to existing proceedings joins, and does not commence, proceedings.
Neither the plaintiff nor the 1st defendant had a specific claim against KENHA; the joinder was under Order 1 rule 10(2) because KENHA was a necessary party to resolve whether the suit land was a road reserve. The statute is silent on court-ordered joinder to ongoing proceedings. Further, in the absence of a prescribed statutory form, service of the joinder application satisfied the notice's purpose of giving KENHA time to gather information.
Whether joinder of KENHA contravened Section 67(b) of the Kenya Roads Act (limitation)
It did not, because there was no claim against KENHA and thus no ascertainable date when a cause of action accrued or a limitation period began to run.
The court reasoned that limitation analysis presupposes a claim against the authority with an accrual date. Since KENHA was joined as a necessary party with no claim against it, no limitation period could be identified as having started or lapsed. Section 67(b) therefore had no application to the joinder of a necessary party to ongoing proceedings.
Costs of the preliminary objection
No costs awarded at this stage; costs to be in the cause, because the objection raised novel issues.
The court observed it had not encountered identical issues or any decision on the application of Sections 67(a) and (b) of the Kenya Roads Act to ongoing proceedings in the context of Order 1 rule 10(2). Given the novelty of the questions, it declined to make a costs award, reserving costs to the cause.
Legal principles established
#- A party joined to ongoing proceedings pursuant to an order under Order 1 rule 10(2) of the Civil Procedure Rules does not invalidate the joinder by reason of non-service of the one-month notice under Section 67(a) of the Kenya Roads Act, since there is no claim commenced against the Authority.
- Where no specific claim exists against a joined authority, no cause of action date can be fixed and limitation under Section 67(b) of the Kenya Roads Act cannot be invoked against the joinder.
- Service of the application seeking joinder can constitute proper notice under Section 67(a) where no specific statutory form of notice is prescribed, since the purpose of the notice is satisfied.
Court orders
#- 1.The preliminary objection dated 18/11/2025 and amended on 26/1/2026 is rejected and dismissed for lack of merit
- 2.Costs of the preliminary objection shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the land dispute; joinder ordered under Order 1 rule 10(2) of the Civil Procedure Rules
Relief refused
#Striking out of the claim as against the 2nd defendant (KENHA) and dismissal of the suit in limine
The court found that joinder of KENHA to ongoing proceedings under Order 1 rule 10(2) neither contravened Section 67(a) nor Section 67(b) of the Kenya Roads Act; the objection also failed the factual-ascertainment aspect of the Mukisa Biscuit threshold in part
Costs
Costs of the preliminary objection shall be in the cause; no award of costs at this point because the objection raised novel issues.
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.
In the end, the preliminary objection dated 18/11/2025 and amended on 26/1/2026 is rejected and dismissed for lack of merit. Costs of the preliminary objection shall be in the cause.
The 2nd defendant being one such party, I do not think failure to serve on its Director-General the notice contemplated under Section 67(a) of the Act invalidates the joinder.
service of the application dated 24/4/2024 which sought KENHA's joinder to the suit was, in my view, proper notice under the said section.
Consequently, the finding of the court on the third issue is that joinder of KENHA to these proceedings did not and does not ofiend Section 67(b) of the Kenya Roads Act.
For the above reasons, the court finds that the substantive points raised in the objection dated 26/1/2026 properly meet the threshold of a preliminary objection.
Issues in the judgment
#Relief (a) and the injunction in relief (d) refer to a different parcel number (Ontulili/Ontulili Block I(Katheri)/503 vs /1530); the judgment itself uses both numbers for what appears to be the same suit land.
Recurrent typographical errors in the judgment text (e.g. 'plaintifi's' for 'plaintiff's', 'efiectually' for 'effectually', 'ofiend' for 'offend').
The court records Yano J as having made the joinder order, while this ruling is authored by B M Eboso J; the excerpt does not clarify the transition.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwendwa & another (Suing as the Legal Representatives of the Estate of the Late Abrahim M'Kirera M'Ncau alias Abrahim M’Kirera M’Nchauu – Deceased) v Safaricom Plc & another (Environment and Land Case E020 of 2022) [2026] KEELC 3144 (KLR)", Case Analysis (2026). Not stated in the excerpt (suit instituted 3/11/2022 at Meru; Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3144/eng@2026-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.