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ELCAllowedELC Case No. E039 of 2025

Nguwa Nzaro Kalama & 33 Others v Mohsin Bin Saleh Sherman & 4 Others; Maimuna Mzee Khamis & 3 Others (Intended Respondents)

Environment and Land Court of Kenya
24 September 2026
3,958 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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In this Environment and Land Court ruling at Mombasa, four intended respondents — Maimuna Mzee Khamis, Khamis Mzee Khamis, Salama Khamis Mzee and Rehema Haji Iddi, the registered joint proprietors of Plot No. 20960/I/MN, with Green Vine Heights Limited holding Plot No. 20959/I/MN — moved by Notice of Motion dated 26th January 2026 to be joined as co-defendants in an adverse possession suit. Thirty-four plaintiffs, by Originating Summons dated 18th August 2025 under Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules, seek extinguishment of the registered interests over the former Plot No. MSA/MN/I/133 and registration as proprietors in its place. The applicants argued their titles derived lawfully from Mzee Khamis (1977) through a 2012 assent and subdivision, that they are in occupation, and that any order extinguishing their titles without a hearing would offend natural justice and Article 50. Neither the plaintiffs nor the named Sherman respondents filed replies or submissions. Framing four issues, the court applied the Muruatetu interested-party test by analogy (noting counsel had misattributed it to Trusted Society v Mumo Matemu) and Order 1 Rule 10(2), holding the applicants' registered proprietorship a direct and proximate interest, their presence necessary for a complete and enforceable decree in an adverse possession claim, and that no prejudice incapable of compensation in costs would arise at this threshold stage. The Motion was allowed; the applicants were joined as 6th to 9th Respondents, with directions for an amended Originating Summons, responses by replying affidavit, costs in the cause, and mention on 28th October 2026. The court expressly reserved all questions of possession, title and extinguishment for determination on the evidence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended respondents have demonstrated an identifiable and proximate interest in the subject matter of the suit
  2. 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. 3.Whether the joinder sought would occasion prejudice to any party
  4. 4.What consequential orders ought to follow

Key legal issues

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01

Whether the intended respondents demonstrated an identifiable and proximate interest

Holding

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.

Reasoning

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.

p. 9
02

Whether the intended respondents are necessary parties

Holding

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.

Reasoning

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.

p. 14
03

Whether joinder occasions prejudice

Holding

No; the application was brought early, before hearing directions or evidence, and any prejudice is met by costs.

Reasoning

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.

p. 15
04

Consequential orders on pleadings

Holding

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.

Reasoning

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.

p. 15

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 26th January 2026 is allowed
  2. 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. 3.Plaintiffs to file and serve an amended Originating Summons bearing the amended title within fourteen (14) days
  4. 4.Respondents to file and serve their response within 14 days of service of the Originating Summons and file an Affidavit of Service
  5. 5.Plaintiffs at liberty to file and serve a further affidavit, if necessary
  6. 6.Costs of the application to be in the cause
  7. 7.Mention on 28th October 2026 to confirm compliance and take pre-trial directions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 1 Rule 10(2) of the Civil Procedure Rules, 2010

Quotable passages

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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.
p. 16disposition - joinder allowed
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.
p. 16final orders - joinder of intended respondents
The costs of the application shall be in the cause.
p. 17costs
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.
p. 17reservation of merits
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.
p. 17necessity of joinder of registered proprietors

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.