Freedom Ltd vs Omar Awadh Mbarak
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether leave should be granted to amend the Plaint dated 28 November 2016
- 2.Whether the Land Registrar Mombasa County, Director of Surveys, Director of Land Administration and the Attorney General should be joined as defendants
- 3.Whether Kenya Pipeline Company Limited, Telkom Kenya Limited and Steel Makers Limited should be joined as interested parties
Key legal issues
#Amendment of pleadings after close of pleadings
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.
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.
Joinder of necessary parties and interested parties
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.
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.
Scope of the Supreme Court's remittal
The remittal for rehearing does not confine the trial court to the existing parties; it may add necessary parties to effectually determine the dispute.
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.
Legal principles established
#- 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
#- 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.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.The plaint to be amended within 5 days to reflect the order of the court
- 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.Costs in the cause
The bench
#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
#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.
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.
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.
The decision of the Supreme Court does not restrict this court from adding necessary parties in the matter.
Costs in the cause
Issues in the judgment
#Conflicting dates for the Supreme Court judgment
Application date appears misdated
Number of Supreme Court questions stated inconsistently
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kigathi & another v Attorney General & 4 others[2026] KEELC 5756 (KLR)23 Sept 2026applied
Cite this brief
#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.