Musau (Sued as the Legal Representative and Administrator of the Estate of Daniel Musau – Deceased) v Mavi (Suing as Administratrix and Litem of the Estate of Munyoki Nzina Mualavu alias Munywoki Mavi) & another (Environment and Land Case E018 of 2023) [2026] KEELC 2271 (KLR)

4. That this Honourable Court issue an order prohibiting the Plaintifi/Respondent from interfering with the 7th Defendant’s/2nd Applicant’s use and peaceful occupation of formerly LR No. Nzaui/Kalamba/80 or on any other LR resulting from the subdivision of Nzaui/ Kalamba/80 or Nzaui/Kalamba/1070. 5. That this Honourable Court be pleased to reopen and retry the main suit with the intended Interested Party/1st Applicant being granted leave to appear as a Defendant or Counter-claimer or both. 6. That costs be provided for. 3. In support of the application, a joint supporting afidavit was sworn by Kalevu Munywoki Mavi and James Lito Mulinge on 24th October, 2025. The deponents state that the late husband of the Intended Interested Party concluded a sale agreement on 9th August, 1992 with the father of the Plaintifi/ Respondent for the sale of one hectare of land within LR No. Nzaui/Kalamba/80. That the sale agreement spanned up to 8th May, 1997 whereafter the late husband of the 1st Applicant took over peaceful occupation of the suit property. 4. It was further averred that before transfer of ownership of the purchased portion and before the demise of the 1st Applicant’s husband, he sold the portion of land he had purchased to the 2nd Applicant herein. That despite the full knowledge by the Plaintifi/Respondent, he advertently or inadvertently failed to include the 1st Applicant to represent Munywoki Mavi (Deceased) per stirpes. 5. The Applicants averred that on or before 24th June 2025, the Plaintifi went ahead and caused subdivision of the suit property without obtaining the consent of the Land Control Board awarding Munywoki Mavi 0.4 hectares as opposed to the actual size of land that was purchased. That the Plaintifi sued for eviction of the 2nd Applicant as a trespasser on a piece of land which belonged to the 1st Applicant’s late husband. 6. The Applicants contended that the orders issued on 22/10/2025 endanger the interests of the Applicants adding that the 1st Applicant was not notified and given a chance to be heard which is contrary to the rules of natural justice. They urged the court to grant the application as prayed. 7. Opposing the application, the Plaintifi/Respondent filed a replying afidavit sworn by himself on 20th November, 2025. He averred that on 9/8/1992, his late father sold one acre of land to Munywoki Mavi. That the late Munywoki Mavi sold his one-acre portion of land to the 2nd Applicant in the year 2011. The Respondent averred that the 1st Applicant has no locus standi to institute the instant suit because she is not the owner of the land. It was further averred that the 1st Applicant is acting at the behest of the 2nd Applicant since the land in question does not form part of the Estate of Munywoki Mavi. 8. The Respondent contended that the 2nd Applicant was sued for trespass into an extra one and half acre piece of land belonging to the Estate of Daniel Musau Nzyoka since he is the one in occupation of the land and not the Estate of Munywoki Mavi. That the principal suit is for the eviction of the trespassers and the 1st Applicant is not a party. He urged the court to dismiss the application with costs. 9. The Applicants filed a further joint afidavit sworn on 24th November, 2025 in response to the Respondent’s replying afidavit. They averred that contrary to the Respondent’s assertions; both of the Applicants have been in occupation of one hectare of land in LR Nzaui/Kalamba/80 for more than thirty years. They urged the court to reject the replying afidavit with costs. 10. The application was canvassed by way of written submissions. Only the Applicants’ submissions were on record as at the time of writing this ruling. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2271/eng@2026-04-23 2

page 2 of 5

11. Counsel for the Applicants identified one issue for determination namely: a. Whether it is in the interest of justice that the 1st Applicant should be joined in the foregoing matter as an Interested Party. 12. Submitting that the 1st Applicant had demonstrated that she has a protectable interest in the case and that refusal to grant her an order for joinder would result in loss of more than one half of her late husband’s estate, Counsel urged the court to allow the application as sought. Reliance was placed on the case of M’imwenda & another v Mire [2024] KECA 1257 (KLR) in support of the application. 13. The 1st Applicant seeks joinder as an interested party in these proceedings in addition to the review and setting aside of the order issued by this court on 22nd October, 2025. In reply, the Respondent contended that the 1st Applicant is not a party in the primary suit which was instituted solely against the trespassers within LR No. Nzaui/Kalamba/80. The Respondent maintained that the 1st Applicant has no locus standi to institute these proceedings. 14. Joinder of parties to proceedings is governed by Order 1 of the Civil Procedure Rules. In respect of joinder of defendants to a suit, Order 1 Rule 3 of the Civil Procedure Rules 2010 outlines as follows: ‘All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.’ 15. Order 1 Rule 10 (2) goes on to provide as follows: ‘(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintifi or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintifi or defendant, or whose presence before the court may be necessary in order to enable the court efiectually and completely to adjudicate upon and settle all questions involved in the suit, be added.’ 16. The sole issue for determination is whether the 1st Applicant has demonstrated merit in the application for joinder as a Defendant in the proceedings. 17. The 2nd Applicant/7th Defendant has been sued by the Plaintifi vide the Plaint dated 23rd May, 2023. Among the orders sought therein is for vacant possession to be awarded to the Plaintifi against the 7th Defendant. 18. The 7th Defendant filed a Defence and Counterclaim on 15th June, 2023. His line of defence to the Plaintifi’s suit is founded on the basis that he purchased two and half acres of land within LR No. Nzaui/Kalamba/80 from the 1st Applicant paying the full purchase price of Kshs. 300,000/=. He further averred that he took possession of the land and made developments thereat. 19. The 7th Defendant/Applicant counterclaims against the Plaintifi for a declaration that he is bona fide purchaser of the land comprised in the suit property. He has also sought an order for transfer of the portion occupied by himself. 20. The 7th Defendant derives his claim to the suit property from the 1st Applicant/Intended Interested Party. It is the 1st Applicant’s case that the Plaintifi’s late father sold one hectare of land to her late https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2271/eng@2026-04-23 3

page 3 of 5

husband in 1992 and that the Plaintifi is in breach of the sale agreement for failing to transfer the one hectare of land. In the same vein, the Plaintifi contends that while indeed his late father sold land to Munywoki Mavi (deceased), the area of land is one acre and not one hectare. 21. From the foregoing background, it is clear that the respective claims of the Applicants and the Respondent are intertwined from a similar set of facts. This court has not had the opportunity to hear the parties on the dispute over the land and make a determination on the validity of their ownership claims. Amongst the contested issues were a series of sale agreements spanning between 1992 and 2011. 22. In the case of Werrot and Company Ltd & Others v Andrew Douglas Gregory & Others [1998] eKLR it was held as follows: “ For determining the question of who is a necessary party there are two tests; (i) there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question and (ii) it should not be possible to pass an efiective decree in the absence of such a party." 23. Amongst the prayers sought by the Plaintifi in the Plaint are orders for eviction and a permanent injunction against the 7th Defendant. The 7th Defendant cannot efiectively defend his claim to the suit property without involving the 1st Applicant who purchased the land from the Plaintifi’s father before subsequently selling it to the 7th Defendant. 24. These are substantive orders which ultimately may prejudice the 7th Defendant if the 1st Applicant is not made a party to these proceedings. It is therefore the finding of this Court that the 1st Applicant’s presence is necessary for purposes of defending her proprietary interest in the suit property. 25. In Pravin Bowry v John Ward & another [2015] eKLR, the Court of Appeal commenting on who is a necessary party referred to the Ugandan case in Deported Asians Custodian Board v Jafier Brothers Ltd [1999] 1 E.A. 55 (SCU) where the court stated as follows: “ A clear distinction is called for between joining a party who ought to `have been joined as a Defendant and one whose presence before the court is necessary in order to enable the court efiectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit because the party’s presence is necessary in order to enable the court efiectually and completely adjudicate upon and settle all questions involved in the cause or matter… For a person to be joined on the ground that his presence in the suit is necessary for efiectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders which the Plaintifi seeks in the suit, would legally afiect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies (on an application of a Defendant) to be joined as a co-Defendant, where it is shown that the Defendant cannot efiectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” 26. In conclusion, it is in the interest of efiectual and complete adjudication of the dispute herein that the 1st Applicant should be made a party to the proceedings. Again, since the orders sought would afiect the rights of the 7th Defendant who would then turn his sights for legal recourse against the 1st Applicant, an order for joinder would prevent unnecessary protraction and multiplicity of suits. 27. In the end, the application herein is merited. It ought to be allowed in the following terms: - https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2271/eng@2026-04-23 4

page 4 of 5

1. An order for joinder is hereby issued granting 1st Applicant leave to appear as a Defendant. The Pleadings in this matter shall be served upon the 1st Applicant only who shall be at liberty to file a defence to the Plaintifi’s claim. 2. That costs of the application shall be in the cause. It is so ordered. HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 23RD APRIL, 2026. In the presence of: Mr. Mutiso for Applicant. Court assistants – Steve and Nyaanga https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2271/eng@2026-04-23 5

page 5 of 5