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Case Brief · caselaw.co.ke
ELCAllowedELC 358/2016

Freedom Ltd vs Omar Awadh Mbarak

Environment and Land Court of Kenya
25 September 2026
6,035 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Mombasa court allowed a landowner to add government officials and companies to a long-running land case, showing remitted cases can gain new parties.

What this practically means

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Executive summary

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Freedom Ltd, the plaintiff in a long-running land dispute over Plot Number 1948 (Original Number 287) of Section V Mainland North, applied by notice of motion dated 3rd July 2026 for leave to amend its plaint and to join the Land Registrar, Mombasa County, the Director of Surveys, the Director of Land Administration and the Attorney General as defendants, and Kenya Pipeline Company Limited, Telkom Kenya Limited and Steel Makers Limited as interested parties. The application followed the Supreme Court's judgment of 23 January 2026 in Petition No. E009 of 2024, which found material factual lacunae in the first trial and remitted the dispute to the Environment and Land Court for rehearing on a priority basis, directing the court to answer five specific factual and legal questions with the aid of oral and documentary evidence from relevant public officers. Omar Awadh Mbarak, the defendant, opposed the application, arguing that the remittal merely restored the suit for rehearing on identified evidentiary deficiencies, that the public officers' evidence could be obtained by witness summons without joinder, and that the Supreme Court had earlier dismissed a joinder application by the same officers. He also objected to the expanded claims over seventeen parcels created in 2022 as an entirely new dispute. Ombwayo J allowed the application. Relying on Order 8 Rules 3(1) and 5(1), Order 1 Rule 10(2) and the Meme, Civicon and Deported Asians Custodian Board principles, he held that the government officers who transacted on the property were necessary parties since ownership could not be determined without the Government as custodian of the land records, and that the Supreme Court's remittal did not restrict the addition of necessary parties. Telkom Kenya and Steel Makers were joined as 2nd and 3rd interested parties, Kenya Pipeline already being enjoined. The plaint was to be amended within five days, service effected, and documents filed within five days of service. Costs in the cause.

Questions the Court framed

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

  1. 1.Whether leave should be granted to amend the Plaint dated 28 November 2016
  2. 2.Whether the Land Registrar Mombasa County, Director of Surveys, Director of Land Administration and the Attorney General should be joined as defendants
  3. 3.Whether Kenya Pipeline Company Limited, Telkom Kenya Limited and Steel Makers Limited should be joined as interested parties

Key legal issues

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01

Amendment of pleadings after close of pleadings

Holding

Leave to amend may be granted under Order 8 Rule 3(1) and Order 8 Rule 5(1) where necessary for the just determination of the controversy, absent prejudice not compensable in costs.

Reasoning

The court set out the statutory framework under Order 8 of the Civil Procedure Rules and the settled principles from Joseph Ochieng, Central Kenya and Institute for Social Accountability: amendments should be freely allowed unless they introduce a new inconsistent cause of action, cause undue delay or prejudice beyond compensation in costs. The amendments here were consequential to the Supreme Court's remittal and aligned the pleadings with the questions framed for the rehearing.

p. 13
02

Joinder of necessary parties and interested parties

Holding

The government officers who transacted on the property are necessary parties; Telkom Kenya and Steel Makers have proximate proprietary interests warranting joinder as interested parties.

Reasoning

Applying Order 1 Rule 10(2) and the Meme, Civicon and Pravin Bowry/Deported Asians Custodian Board tests, the court found the presence of the public officers necessary for complete settlement of the questions framed by the Supreme Court, since the evidentiary lacuna concerned public land and survey records. The proposed interested parties claim registered easements and proprietary interests over portions derived from the original parcel, which findings on rehearing may directly affect.

p. 17
03

Scope of the Supreme Court's remittal

Holding

The remittal for rehearing does not confine the trial court to the existing parties; it may add necessary parties to effectually determine the dispute.

Reasoning

The respondent argued the remittal merely restored the matter for rehearing on identified deficiencies and did not authorise new parties or fresh claims. The court held that the Supreme Court's decision does not restrict it from adding necessary parties, and that joinder was in the interest of justice to cure the evidentiary lacuna identified by the appellate courts.

p. 17

Legal principles established

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  • The decision of the Supreme Court remitting a matter for rehearing does not restrict the trial court from adding necessary parties.
  • Government officers who transacted on property in dispute, and the Government as custodian of land records, may be necessary parties where ownership cannot be determined without them.

Court orders

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  1. 1.The Attorney General to be enjoined as the 2nd defendant on behalf of The Land Registrar, Mombasa County, The Director of Surveys and the Director, Land Administration
  2. 2.Telkom Kenya Limited and Steel Makers Limited to be enjoined as the 2nd and 3rd interested parties (Kenya Pipeline already enjoined as 1st interested party)
  3. 3.The plaint to be amended within 5 days to reflect the order of the court
  4. 4.The Attorney General and the interested parties to be served within 5 days and to file their respective documents within 5 days of service
  5. 5.Costs in the cause

The bench

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

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 8 Rules 3(1) and 5(1) of the Civil Procedure Rules, 2010 and Section 100 of the Civil Procedure Act, in a suit remitted by the Supreme Court

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.

I do order that the Attorney General to be enjoined as the 2nd defendant on behalf of The Land Registrar, Mombasa County, The Director of Surveys and the Director, Land Administration.
p. 17Final orders - joinder of public officers as defendant
I do allow the application and do order the plaint to be amended within the next 5 days to reflect the order of the court.
p. 17Final orders - amendment of plaint allowed
It is not possible to determine the ownership of the property without enjoining the government that is the custodian of the record of the suit parcels of land.
p. 17Necessity of joining the Government as custodian of land records
The decision of the Supreme Court does not restrict this court from adding necessary parties in the matter.
p. 17Scope of Supreme Court remittal
Costs in the cause
p. 17Costs order

Issues in the judgment

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minor

Conflicting dates for the Supreme Court judgment

minor

Application date appears misdated

minor

Number of Supreme Court questions stated inconsistently

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Freedom Ltd vs Omar Awadh Mbarak", Case Analysis (2026). ELC 358/2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5820/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.