Nguwa Nzaro Kalama & 33 Others v Mohsin Bin Saleh Sherman & 4 Others; Maimuna Mzee Khamis & 3 Others (Intended Respondents)
The bottom line
#Kenya's Environment and Land Court ruled that landowners cannot lose their property through an adverse possession claim unless they are joined as parties to 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 intended respondents have demonstrated an identifiable and proximate interest in the subject matter of the suit
- 2.Whether the presence of the intended respondents is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit
- 3.Whether the joinder sought would occasion prejudice to any party
- 4.What consequential orders ought to follow
Key legal issues
#Whether the intended respondents demonstrated an identifiable and proximate interest
Yes; registered proprietorship of the very land sought to be acquired by adverse possession is a direct, not peripheral, interest, and the prejudice of non-joinder is extinguishment of title without a hearing.
The court applied the Muruatetu test by analogy under Order 1 Rule 10(2): identifiable proximate stake, demonstrated prejudice, and contribution to complete determination. The intended respondents hold the subdivided titles derived from Plot MSA/MN/I/133, occupy the land, and possess evidence central to the chain of title. Their interest is the very relief targeted by the Originating Summons, so the threshold is amply met.
Whether the intended respondents are necessary parties
Yes; an adverse possession claim cannot be tried or determined without the proprietors whose title stands to be extinguished, and no enforceable decree could issue in their absence.
Relying on Order 1 Rule 10(2), JMK v MWM, Central Kenya Ltd v Trust Bank and adverse possession authorities (Kasuve v Mwaani Investments; Kamia v King'oo), the court held that the claim lies against the person in whom title is vested. The registered proprietors of the subdivided plots are necessary to the constitution of the suit and to a complete and enforceable decree.
Whether joinder occasions prejudice
No; the application was brought early, before hearing directions or evidence, and any prejudice is met by costs.
Applying Ketteman v Hansel Properties via Ochieng v First National Bank of Chicago, the discretion is guided by where justice lies. The Motion was brought at the threshold of the suit, so no prejudice incapable of compensation in costs arises. The court distinguished Omar v Kulei, where necessity was not demonstrated; here the position is the reverse.
Consequential orders on pleadings
Leave to amend granted, but the appropriate response to an Originating Summons under Section 38 of the Limitation of Actions Act and Order 37 is a replying affidavit, not a defence and counterclaim.
Order 37 prescribes no particular form of answer; following Marsh View Limited v Benvar Estates Limited, citing Kuria Kiarie v Sammy Magera, the court directed that responses be by replying affidavit, while granting leave to amend the Originating Summons to bear the amended title.
Legal principles established
#- A claim for adverse possession lies against the registered proprietor of the land, who is therefore a necessary party to the suit.
- No decree extinguishing registered title should be made without the registered proprietors before the court.
Court orders
#- 1.The Notice of Motion dated 26th January 2026 is allowed
- 2.Leave granted to Maimuna Mzee Khamis, Khamis Mzee Khamis, Salama Khamis Mzee and Rehema Haji Iddi to be joined as the 6th, 7th, 8th and 9th Respondents respectively
- 3.Plaintiffs to file and serve an amended Originating Summons bearing the amended title within fourteen (14) days
- 4.Respondents to file and serve their response within 14 days of service of the Originating Summons and file an Affidavit of Service
- 5.Plaintiffs at liberty to file and serve a further affidavit, if necessary
- 6.Costs of the application to be in the cause
- 7.Mention on 28th October 2026 to confirm compliance and take pre-trial directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 1 Rule 10(2) of the Civil Procedure Rules, 2010
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.
The upshot of the foregoing is that the Notice of Motion dated 26th January, 2026 is merited and is hereby allowed as prayed.
Leave is granted to Maimuna Mzee Khamis, Khamis Mzee Khamis, Salama Khamis Mzee and Rehema Haji Iddi to be joined in these proceedings as the 6th, 7th, 8th and 9th Respondents respectively.
The costs of the application shall be in the cause.
Nothing in this Ruling shall be construed as an expression of any opinion on the merits of the Originating Summons, or on any answer that may be made to it.
All that this court decides today is that no one shall lose a title in his absence, and that the whole story of this land — from acquisition, through succession and subdivision, to occupation — shall be told once, and told fully, before one court.
Issues in the judgment
#Court corrects misattribution of the joinder test to Trusted Society v Matemu but later credits the Applicants' reliance on that same case for the test
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nguwa Nzaro Kalama & 33 Others v Mohsin Bin Saleh Sherman & 4 Others; Maimuna Mzee Khamis & 3 Others (Intended Respondents)", Case Analysis (2026). ELC Case No. E039 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5654/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.