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

REHEMA HAJI IDDI .................................... 4TH INTENDED RESPONDENT RULING A. BACKGROUND 1. Every parcel of land tells a story, and this one begins not in a courtroom but on the ground, where soil, sweat and succession have long conducted their own quiet proceedings before ever a plaint was filed. The land in question, once known as Plot No. MSA/MN/I/133, measuring some 7.90 acres, was acquired by one Mzee Khamis in 1977, whose title, as the record shows, survived even a charge to an insurance company and its subsequent discharge. On his death, the land passed by assent in 2012 to his heirs, who then did what families with land often do: they divided it, so that Plot No. 20959 fell to a limited liability company, Green Vine Heights Limited, and Plot No. 20960 fell to four individual heirs, the intended respondents before me. 2. Into this settled family history stepped the Plaintiffs, thirtyfour in number, who by an Originating Summons dated 18th August, 2025 supported by the Affidavit of Nguwa Nzaro Kalama of even date, asked this court to extinguish the registered interests subsisting over Plot No. MSA/MN/I/133 (now subdivided) and to have themselves registered as proprietors in place of the current title-holders, by way of a claim to adverse possession. Notably, the Plaintiffs did not sue Green Vine Heights Limited's beneficial family owners in their individual capacities, nor the four RULING: ELCLOS/E039 OF 2025 Page 2 of 18

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registered proprietors of Plot No. 20960, choosing instead to proceed against four individuals bearing the surname Sherman and the company alone. 3. It is against this backdrop that the intended respondents, through the affidavit of Hassan Mzee Khamis sworn on 26th January 2026, moved this court by the present Notice of Motion, seeking to be joined as co-defendants so that they might defend their registered proprietary interests, which, they contend, lie squarely in the path of the relief the Plaintiffs seek. B. SUMMARY OF THE PARTIES' RESPECTIVE CASES Intended Respondents' Application 4. By a Notice of Motion dated 26th January, 2026, and supported by the affidavit of Hassan Mzee Khamis, the Director of the 5th respondent, sworn on even date, moved this court and sought the following orders: a. That this Honourable Court be pleased to join the applicants as co-defendants in this suit. b. That upon grant of prayer (1) above, the Honourable Court be pleased to grant leave to the parties to amend their pleadings and file responses and documents as may be necessary. 5. Their case is that they are the registered proprietors, respectively, of Plot Nos. 20959/I/MN and 20960/I/MN, both derived from the original Plot No. 133/I/MN through a lawful chain of title running from Mzee Khamis (1977), RULING: ELCLOS/E039 OF 2025 Page 3 of 18

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through assent to his heirs (2012), and through subsequent subdivision. They are resident on and in actual possession of the suit land. They contend that since the Plaintiffs' Originating Summons directly seeks extinguishment of the very titles they hold, any order made in their absence would legally affect them without having been heard; that their joinder is necessary to enable the court to effectually and completely adjudicate upon and settle all questions in the suit; and that their exclusion would risk a multiplicity of suits and an unenforceable decree. Plaintiffs (Nguwa Nzaro Kalama & 33 Others) 6. Although not formally on record in response to this Motion at the time of this Ruling, the substratum of the Plaintiffs' case, as gleaned from the Originating Summons which grounds the suit, is that MSA/MN/I/133 the (and registered its interest subdivisions) in Plot ought No. to be extinguished on account of their long possession, and that the Plaintiffs be registered as proprietors in its place by way of adverse possession — a claim that, on its face, is a direct assault on the very foundation of the intended respondents' title. Named Respondents (Sherman 1st –4th; Green Vine Heights Ltd as 5th Respondent) 7. These are the parties originally sued. Green Vine Heights Limited, though already nominally on record as the 5th Respondent, has, through its Director, sought clarification RULING: ELCLOS/E039 OF 2025 Page 4 of 18

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and formal participation of the individual proprietors of the adjoining plot, whose interests are said to be inseparable from the questions in dispute. C. DIRECTIONS GIVEN AND SUBMISSIONS ON RECORD 8. On 29th June 2026, this court gave directions on the filing and exchange of the parties' respective affidavits and written submissions. In compliance with those directions, the intended respondents filed written submissions dated 3rd July 2026, drawn by Kanyi J. & Company, Advocates, and served upon Okore Otuoma & Company, Advocates for the Applicants. Neither Respondents filed the any Applicants replying nor affidavit, the named grounds of opposition or submissions in answer to the Motion. The application therefore falls to be determined on the Motion, the supporting affidavit, the intended respondents' written submissions, and the documents and material properly on the record. 9. Counsel for the intended respondents framed a single issue, namely whether the intended respondents have demonstrated sufficient legal interest in the subject matter to warrant their joinder in these proceedings. He anchored the application on Order 1 Rule 10(2) of the Civil Procedure Rules, submitting that the jurisdiction the Rule donates is discretionary, but is exercised to ensure that all persons whose legal rights are likely to be affected by the proceedings are before the court, so that all matters in controversy are conclusively determined in one suit. RULING: ELCLOS/E039 OF 2025 Page 5 of 18

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10. On the law, counsel relied on four elements which he attributed to Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, namely: a clearly identifiable stake or legal interest in the proceedings; that such interest be proximate and not merely peripheral; that the intended party would suffer prejudice if excluded; and that the participation of such party will assist the court in the complete determination of the issues in controversy. He further relied on Departed Asians Property Custodian Board v Jaffer Brothers Ltd, Supreme Court of Uganda Civil Appeal No. 9 of 1998, [1999] 1 EA 55, for the proposition that all persons whose presence is necessary to enable the court effectually and completely to determine the issues before it ought to be joined. 11. On the facts, counsel submitted that the property was originally registered in the name of the late Mzee Khamis; that following succession ownership devolved upon his beneficiaries through an assent registered on 2nd August 2012; that the property was thereafter lawfully subdivided; and that the resultant parcels were registered in the names of the intended respondents and the 5th Respondent. The intended respondents are therefore not strangers to the dispute, but the present registered proprietors of the parcels created from the very title the Applicants seek to impeach, so that the outcome of this suit will directly determine, affect and possibly extinguish their proprietary rights. RULING: ELCLOS/E039 OF 2025 Page 6 of 18

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12. Counsel further submitted that if these proceedings were to continue without the registered proprietors, the court would be invited to make orders affecting proprietary interests belonging to persons who have not been heard, a course that would offend both the rules of natural justice and Article 50 of the Constitution; that the intended respondents hold material evidence touching the acquisition of the original property, its transmission through succession, the subdivision of the land, the subsequent registration, and the current occupation and possession; that cancellation of title is among the most serious remedies a court may grant and cannot be visited upon a proprietor condemned unheard; and that, conversely, no prejudice whatsoever would be suffered by the existing parties if the joinder were allowed. Joinder, he concluded, would advance the overriding objective in Sections 1A and 1B of the Civil Procedure Act by averting fresh proceedings over the same parcels of land. He prayed that the Motion be allowed as prayed, that leave to amend the pleadings be granted, and that the costs of the application be awarded to the intended respondents. D. ISSUES FOR DETERMINATION 13. Having considered the Motion, the supporting affidavit, the written submissions and the record, the court finds that issues falling for determination are: a. Whether the intended respondents have demonstrated an identifiable and proximate interest in the subject matter of the suit; RULING: ELCLOS/E039 OF 2025 Page 7 of 18

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b. 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; c. Whether the joinder sought would occasion prejudice to any party; and d. What consequential orders ought to follow. E. ANALYSIS AND DETERMINATION 14. A court asked to decide who owns a piece of land does well to first ask who is standing before it, for a title extinguished in the absence of its holder is a judgment built on sand. I take each issue in turn. Issue 1: Whether the intended respondents have an identifiable and proximate interest. 15. One matter of attribution must be corrected before the facts are reached. The four elements urged by counsel are not to be found in Trusted Society of Human Rights Alliance v Matemo & 5 others (Petition 12 of 2013) [2014] KESC 32 (KLR), which addressed the distinction between an amicus curiae and an intervener or interested party. They are drawn instead from Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR), where the Supreme Court held (read Para 37): RULING: ELCLOS/E039 OF 2025 Page 8 of 18

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“The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.” 16. That test was formulated under Rule 25 of the Supreme Court Rules and Section 23 of the Supreme Court Act, and I apply its elements here by analogy only, the governing provision before me being Order 1 Rule 10(2) of the Civil Procedure Rules. The misattribution is of no consequence to the outcome: the test was correctly stated, only wrongly sourced. 17. Measured against that test, the interest of the intended respondents is plain. They submit that Plot No. MSA/MN/I/133 is now non-existent, the title having been closed upon subdivision into Plot No. 20959/I/MN, registered in the name of Green Vine Heights Limited, and Plot No. 20960/I/MN, registered in the joint names of Maimuna Mzee Khamis, Khamis Mzee Khamis, Salama Khamis Mzee and Rehema Haji Iddi. This is not a peripheral or speculative interest; it is registered proprietorship of the very land the Applicants seek to acquire by way of adverse possession. Nor is the prejudice of non-joinder remote: it is RULING: ELCLOS/E039 OF 2025 Page 9 of 18

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the extinguishment of registered title without a hearing. The first threshold is amply met. The Applicants correctly rely on the Supreme Court decision in Trusted Society of Human Rights Alliance v Matemo & 5 others (Petition 12 of 2013) [2014] KESC 32 (KLR), which requires an intended party to demonstrate an identifiable and proximate stake, the prejudice likely to be suffered if excluded, and the contribution that participation would make to the complete determination of the dispute. Those requirements are amply satisfied here. The intended respondents stand to lose registered proprietary rights, possess evidence central to the chain of title and present occupation, and cannot fairly be treated as spectators to proceedings whose relief is directed at extinguishing their titles. Issue 2: Whether the presence of the intended respondents' is necessary. 18. Order 1 Rule 10(2) of the Civil Procedure Rules, read together with Order 8, empowers the court to join a party whose presence is necessary to enable it effectually and completely to adjudicate upon and settle all questions involved in the suit, and thereupon amend pleadings. The provision states: "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 plaintiff or defendant, be struck out, and that the RULING: ELCLOS/E039 OF 2025 Page 10 of 18

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name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added." 19. The Court of Appeal in JMK v MWM & Another [2015] KECA 524 (KLR) observed that the Rule empowers the court, at any stage of the proceedings, upon the application of either party or suo motu, to order that the name of a person who ought to have been joined, or whose presence is necessary to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added as a party. Adopting the commentary of the learned authors of Sarkar's Code of Civil Procedure (11 th Ed, Reprint 2011, Vol 1, p. 887), the Court continued: “The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.” 20. I note that the same Court was careful to confine the Rule to proceedings still pending before it, holding that Order 1 Rule 10(2) “contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court.” These proceedings are not only pending; they are at their threshold. RULING: ELCLOS/E039 OF 2025 Page 11 of 18

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21. This liberal approach is of long standing and was affirmed by the Court of Appeal in Central Kenya Ltd v Trust Bank & 4 Others, CA No. 222 of 1998, where the guiding principle was stated to be that all amendments and joinders should be freely allowed at any stage, provided no prejudice or injustice to the other party is occasioned that cannot be compensated in costs and that “[t]he paramount consideration is whether the party concerned is necessary for the effectual and complete adjudication of all the questions involved in the suit.” 22. The distinction between a party merely proper and a party truly necessary is settled in this jurisdiction. In Waithaka & another v Ronoh; Kipnyolei (Intended Interested Party) (Environment & Land Case 98 of 2015) [2025] KEELC 4461 (KLR) the court restated it thus: “Necessary parties who ought to have been joined are parties who are necessary to the constitution of the suit without whom no decree at all can be passed. Therefore, in case of a defendant two conditions must be met: (1) There must be a right to some relief against him in respect of the matter involved in the suit. necessary in (2) His order presence to enable should the be Court effectively and completely to adjudicate upon and settle all the questions involved in the suit…” RULING: ELCLOS/E039 OF 2025 Page 12 of 18

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23. To the same effect, though as persuasive authority only, is the decision of the Supreme Court of Uganda in Departed Asians Property Custodian Board v Jaffer Brothers Ltd, Civil Appeal No. 9 of 1998; [1999] 1 EA 55, upon which counsel relied. 24. In a claim founded on adverse possession the point is sharper still, for the claim lies against the person in whom the title is vested. The Court of Appeal in Titus Mutuku Kasuve v Mwaani Investments Limited & 4 others [2004] KECA 161 (KLR) held that such a claim is not maintainable against persons who do not hold the title, and in Kamia & another v King'oo & 11 others (Civil Appeal 377 of 2019) [2024] KECA 1669 (KLR) the Court stated that “[i]t is trite that the right to claim adverse possession accrues when the person against whom the claim is brought is the registered proprietor of the land in question.” This court is not alone in drawing the consequence. In Kariuki v Nyaga & 2 others (Environmental and Land Originating Summons 11 of 2020) [2025] KEELC 3653 (KLR) the joinder of the first and the current registered proprietors was allowed in an adverse possession Originating Summons precisely because, “[t]his being a suit for adverse possession, then they would be necessary parties”; and in Ngugi v Nayer & another (Environmental and Land Originating Summons E026 of 2023) [2025] KEELC 4802 (KLR) the court held that the proposed party was “a necessary party to these proceedings” and that “there is no prejudice if such joinder is to be allowed.” RULING: ELCLOS/E039 OF 2025 Page 13 of 18

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25. Applying these principles to the record before me, no decree extinguishing the registered interest in the suit property could be enforced, nor could it be regarded as complete or just, without the very proprietors of the subdivided plots standing before the court that makes it. The intended respondents are necessary parties to this suit, the court being called upon to inquire into the ownership of land which the Applicants seek to acquire by way of adverse possession — a claim that cannot be tried, let alone determined, without the proprietors whose title stands to be extinguished. Issue 3: Whether joinder would occasion prejudice. 26. The intended respondents have established a genuine and substantial interest as the registered owners of Plot No. 20960/I/MN and, through Green Vine Heights Limited, Plot No. 20959/I/MN, both created upon the closure of Plot No. MN / I /133. Any order made in this suit would legally affect their interests; to avoid a multiplicity of suits, their joinder is necessary. The court’s discretion is to be exercised by reference to where justice lies. In Ochieng & 2 others t/a Aquiline Agencies v First National Bank of Chicago (Civil Appeal 149 of 1991) [1995] KECA 31 (KLR), Shah JA, adopting the words of Lord Griffiths in Ketteman v Hansel Properties Ltd [1988] 1 All ER 38, put it thus: “Whether an amendment should be granted is a matter for the discretion of the trial judge and he should be guided in the exercise of the RULING: ELCLOS/E039 OF 2025 Page 14 of 18

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discretion by his assessment of where justice lies. Many and diverse factors will bear on the exercise of this discretion.” 27. This Motion is brought at the early stages of the suit, before hearing directions have been taken and before any evidence has been tendered. It occasions no prejudice to the Applicants that cannot be adequately met by an appropriate order as to costs. The contrast is with those cases in which necessity is simply not demonstrated, as in Omar & another v Kulei & 4 others; Okumu (Proposed Defendant) (Environment and Land Case E033 of 2023) [2025] KEELC 5744 (KLR) where joinder was refused because the applicant “has not sufficiently demonstrated that his involvement shall shed any light… such as to term him a necessary party.” Here the position is the reverse: the intended respondents hold the titles that the suit seeks to extinguish, and their absence, not their presence, is what would prejudice the just disposal of this matter. Issue 4: Consequential orders and directions 28. The second prayer seeks leave to amend pleadings and to file responses and documents. A word of caution is necessary, for this suit was commenced by Originating Summons under Section 38 of the Limitation of Actions Act and Order 37 of the Civil Procedure Rules. Order 37 prescribes no particular form of answer, and the settled view is that the appropriate response to an Originating Summons is a replying affidavit rather than a defence and counterclaim: see Marsh View RULING: ELCLOS/E039 OF 2025 Page 15 of 18

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Limited v Benvar Estates Limited (Environmental and Land Originating Summons 17 of 2020) [2025] KEELC 6804 (KLR), citing Kuria Kiarie & 2 others v Sammy Magera [2018] KECA 467 (KLR). Directions are provided hereinunder. F. CONCLUSION AND DISPOSAL ORDER 29. The intended respondents are necessary parties to this suit, the court being called upon to inquire into the ownership of land which the Plaintiffs seek to acquire by way of adverse possession, a claim that cannot be tried, let alone determined, without the very proprietors whose title stands to be extinguished. 30. The upshot of the foregoing is that the Notice of Motion dated 26th January, 2026 is merited and is hereby allowed as prayed. Accordingly, the court makes the following orders for disposal thereof: a. The Notice of Motion dated 26th January 2026 is allowed. b. 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. c. The Plaintiffs shall, within fourteen (14) days of the date of this Ruling, file and serve an amended Originating Summons bearing the amended title of the suit upon the 6th to 9th Respondents. RULING: ELCLOS/E039 OF 2025 Page 16 of 18

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d. The Respondents response within shall 14 file days and of serve service of their the Originating Summons and file an Affidavit of Service thereto; e. The Plaintiffs shall be at liberty to file and serve a further affidavit, if necessary; f. The costs of the application shall be in the cause. g. Mention on 28th October 2026 to confirm compliance and to take pre-trial directions. 31. 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. Every question of possession, of title and of the extinguishment of title remains entirely open for determination on the evidence in due course. 32. And so, the family that took its title from Mzee Khamis in 1977, and the thirty-four who say that their years upon this land have earned them a title of another kind, will now stand in the same courtroom, on the same day, over the same soil. Which of the two claims prevails is a question for another day and for evidence yet to be called. 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. Orders accordingly. RULING: ELCLOS/E039 OF 2025 Page 17 of 18

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Ruling dated, signed and delivered at Mombasa this 24 th day of September, 2026. ............................... B.A. AKELLO, OGW JUDGE In the presence of: Gillian – Court Assistant Achoka H/b Maundu for the Plaintiffs N/A for the Respondents N/A for the Intended Respondents RULING: ELCLOS/E039 OF 2025 Page 18 of 18

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