Freedom Ltd vs Omar Awadh Mbarak

by this Court. The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 2/13

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The application is based on grounds that the subject matter of this suit was escalated to the Supreme Court of Kenya which, vide Judgment delivered on 23 January 2026 (the Supreme Court Judgment) remitted this dispute to the Environment and Land Court for rehearing and determination on a priority basis. In the Supreme Court Judgment, the Supreme Court found that the initial trial was affected by material factual lacunae particularly concerning the nature, ownership, historical dealings, and legal status of the suit property. The Supreme Court concluded that these issues had not been sufficiently interrogated, evaluated, or conclusively determined. Consequently, the Supreme Court directed that the rehearing of this Suit before this Court be guided by specific and substantive factual and legal questions namely: a. the current legal status of the suit property; b. at what stage and through what legal process did the Defendant’s grandfather (deceased) come into possession of the suit property; c. when and through what legal process was the suit property subdivided and/or surrendered to the Government and transferred to the Plaintiff; d. The Plaintiff’s root of title and an explanation for the existence of two different title numbers relating to the same property; and e. whether the land subject of this dispute is “agricultural land” under the Land Control Act. The Supreme Court directed this Honourable Court to call for both oral and documentary evidence from the relevant public officers best placed to clarify these issues. According to the plaintiff, the proposed joinder of (i) the Land Registrar, Mombasa County (ii) the Director of Surveys (iii) the Director, Land Administration and (iv) the Honourable Attorney General is both necessary and imperative to enable this Honourable Court to effectively discharge its mandate on the rehearing. In particular, the joinder will facilitate this Honourable Court to inquire into the origin and legality of the titles relating to the suit property and interrogate the processes of registration, survey, subdivision, surrender, and transfer of the suit property, which matters lie within the knowledge and custody of the Proposed Defendants; and effectually and completely determine the questions expressly identified by the Supreme Court and therefore avoid a piecemeal or inconclusive determination of the dispute. Furthermore, the applicant contends that it is necessary to join Kenya Pipeline Company, Telkom Kenya Limited, and Steel Makers Limited, as interested parties as they have demonstrable and proximate interests in the suit property arising from, inter alia, ownership, occupation, use or infrastructure placement on portions thereof, and their participation is necessary to ensure that all competing claims, interests, and factual assertions are placed before the Court at the rehearing. In order to give full effect to the Supreme Court’s Judgment on the re-hearing, it is necessary to amend the Plaint and join the Proposed Defendants and the Proposed Interested Parties so as to align the pleadings with the issues that the Court is now required The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 3/13

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to determine. According to the applicant, the proposed amendments and joinder are thus consequential to, and required by, the Supreme Court’s Judgment, and are intended to align the pleadings with the scope and purpose of the rehearing ordered by the Supreme Court. The amendments do not introduce a new or inconsistent cause of action and occasion no prejudice to the Defendant who will be afforded a full opportunity to respond. Considering that the Supreme Court has ordered a re-hearing of this Suit which is akin to a fresh hearing of the dispute, amendment of the pleadings is necessary in order to ensure that the pleadings accurately reflect the case that each of the parties is supposed to meet during trial. No prejudice will be occasioned to the Defendant as the amendment has been made necessary by the Supreme Court’s Judgment, and all parties will be afforded a full opportunity to respond to the Amended Plaint and participate in the rehearing. The application is supported by the affidavit of Harji Govind Rurda a resident of Nairobi County and the Director of Freedom Limited (the Plaintiff/ Applicant) who states that the suit concerns ownership and proprietary rights over the property known as Plot Number 1948 (Original Number 287) of Section V Mainland North registered and delineated on Land Survey Plan Number 223946 (the Suit Property). The subject matter of this suit was escalated to the Supreme Court of Kenya which, vide Judgment delivered on 23 January 2026 remitted the dispute to the Environment and Land Court for re-hearing and determination on a priority basis. The Supreme Court found that the initial trial was affected by material factual lacunae particularly concerning the nature, ownership, historical dealings, and legal status of the suit property. The Supreme Court concluded that these issues had not been sufficiently interrogated, evaluated, or conclusively determined and ordered that the matter be remitted to this Honourable Court for re-hearing. The Supreme Court directed this Honourable Court to call for both oral and documentary evidence from relevant public officers best placed to clarify these issues. The plaintiff believes that the joinder of (i) the Land Registrar, Mombasa County (ii) the Director of Surveys (iii) the Director, Land Administration and (iv) the Honourable Attorney General (collectively the Proposed Defendants) is both necessary and imperative to enable this Honourable Court to effectively discharge its mandate on the rehearing. In particular, the joinder of the Proposed Defendants will facilitate this Honourable Court to inquire into the origin and legality of the titles relating to the suit property and to interrogate the processes of registration, survey, subdivision, surrender, and transfer of the suit property, which matters lie within the knowledge and custody of the Proposed Defendants; and effectually and completely determine the questions expressly identified by the Supreme Court and therefore avoid a piecemeal or inconclusive determination of the dispute. The applicant states that it is necessary to join Kenya Pipeline Company, Telkom Kenya Limited, and Steel Makers Limited (collectively the Proposed Interested Parties) as they The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 4/13

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have a demonstrable and proximate interest in the suit property arising from, inter alia, ownership, occupation, use or infrastructure placement on portions thereof, and their participation is necessary to ensure that all competing claims, interests, and factual assertions are placed before the Court at the rehearing. According to the applicant, the proposed amendments and joinder are thus consequential to, and required by, the Supreme Court’s Judgment, and are intended to align the pleadings with the scope and purpose of the rehearing ordered by the apex court. The applicant does not introduce a new or inconsistent cause of action and occasions no prejudice to the Defendants or Interested Parties, all of whom will be afforded a full opportunity to respond. That since this Suit is being re-heard which is akin to a fresh hearing, the amendment of pleadings ought to be freely allowed to ensure that all issues in dispute can be conclusively determined with finality. That no prejudice will be occasioned to any party as the amendments proposed to be made have been necessitated by the Supreme Court Judgment, and all parties will be afforded a full opportunity to respond to the Amended Plaint and participate in the rehearing. The applicant urges that Order 8 Rule 3(1) of the Civil Procedure Rules, 2010 (the CPR) and Section 100 of the Civil Procedure Act confer upon this Honourable Court wide discretion to permit amendments of pleadings at any stage of the proceedings on such terms as may be just. Complementing this power, Order 8 Rule 5(1) of the CPR expressly provides that the Court may, for the purpose of determining the real question in controversy between the parties, order the amendment of any document at any stage of the proceedings. The applicant further argues that the principles governing the exercise of that discretion are well settled. In Joseph ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR) (the Joseph Ochieng Case) the Court of Appeal referred to Bullen and Leake & Jacob's Precedents of Pleading 12th Edition and clearly set out the principles under which Courts may grant leave to amend the pleadings as follows: i. amendments should be timeously applied for; ii. the amendment sought to be made should be allowed if made in good faith provided costs can compensate the other side; iii. the proposed amendment must not be immaterial or useless or merely technical; iv. if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; and v. the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts. He cites the case of Sadera & 2 others v Kerema & 7 others [2025] KECA 458 (KLR) where the Court of Appeal stated that, “the phrase ‘for the purpose of determining the real question in controversy between the parties’ essentially means that a court should allow The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 5/13

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amendments to pleadings or take necessary steps to ensure the core dispute between The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 6/13

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parties is clearly identified and adjudicated upon. Therefore, the basic object of the above rule is that courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other party.” Similarly, in Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR) (the Central Kenya Case), the Court of Appeal held as follows: “The overriding consideration in applications for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs. The policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suffer injustice which cannot properly be compensated for in costs.” The applicant submits that the proposed amendments comfortably satisfy each of these principles. First, they are not prompted by any change in the Plaintiff's case but by the Judgment of the Supreme Court itself. The Supreme Court held that, in light of the glaring yet unanswered questions surrounding the nature and ownership of the suit property, it was unable to reach definitive conclusions on the dispute and consequently remitted the matter to this Honourable Court for a rehearing. In doing so, it identified specific factual and legal questions to be determined and directed this Court to call for and examine both oral and documentary evidence from the relevant public offices best placed to clarify those issues. The proposed amendments are therefore consequential to, and intended to give effect to, the Supreme Court's Judgment by ensuring that the pleadings properly raise the issues identified by the Supreme Court for determination and facilitate the rehearing directed by the apex Court. That the draft Amended Plaint, pleads with particularity the history of the Suit Property, including the Original Parcel, the successive government acquisitions, surveys, subdivisions and transfers, and the explanation for the existence of two different title numbers relating to the same property. These amendments are directed at the very questions framed by the Supreme Court, including the legal status of the Suit Property, whether and through what legal process the property was subdivided, surrendered or transferred, the explanation for the existence of two title numbers relating to the same property, and the evidence necessary to determine those issues. Without these amendments, the pleadings would not reflect the scope of the rehearing ordered by the Supreme Court. The plaintiff urges that the amendments do not introduce a new or inconsistent cause of action. The Plaintiff's claim remains exactly as it has always been, namely, that it is the lawful proprietor of the Suit Property and is entitled to the declaratory and consequential reliefs sought against the Defendant. The amendments merely provide the additional The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 7/13

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factual The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 8/13

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particulars necessary to explain and support that existing claim in light of the Supreme Court's findings. They neither alter the character of the suit nor transform it into a substantially different action within the meaning of Joseph Ochieng Case. To the extent that the draft Amended Plaint particularises fraud and forgery against the Defendant, the plaintiff argues that this cannot constitute a basis for refusing leave. Indeed, Central Kenya Case the Court of Appeal allowed amendments introducing particulars of fraud and additional parties, emphasising that pleadings contain mere allegations, which must be proved at trial. The Court further held that neither the perceived weakness of the allegations nor the mere length of the proposed amendments justified refusal of leave, absent prejudice or injustice incapable of compensation by costs. Finally, no prejudice whatsoever will be occasioned to the Defendant. This suit is before this Honourable Court pursuant to an order of the Supreme Court directing that it be reheard. The Defendant will therefore have every opportunity to respond to the Amended Plaint by filing an amended defence together with any further witness statements and documentary evidence he considers necessary. The Application was brought promptly following the Supreme Court Judgment, and any inconvenience that may arise is, in any event, compensable by an award of costs. Accordingly, this is precisely the type of case contemplated in Central Kenya Case, where leave ought to be granted in order to facilitate the just and complete determination of the dispute between parties. On joinder of the proposed interested parties, the applicant argues that The Proposed Interested Parties have direct, identifiable and proximate interests in the Suit Property warranting their joinder. The applicant cites the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others (Petition 12 of 2013) [2014] KESC 32 (KLR) and reaffirmed in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR), the Supreme Court held that an intended interested party must demonstrate: (i) a personal interest or stake that the party has in the matter must be clearly identifiable and proximate, as opposed to merely peripheral; (ii) the prejudice likely to be suffered in case of non-joinder; and (iii) the relevance of its participation in assisting the Court to determine the issues in dispute. The Proposed Interested Parties meets this threshold as their respective interests all derive from portions excised or acquired from the Original Parcel and its successors in title: Kenya Pipeline Company Limited holds a duly acquired easement over a strip of the Suit Property approximately 30 metres in width, registered as a caveat against the property's title on 29 September 1983 and recorded as entry number 54A in the original title, C.R. No. 6302, conferring on it a direct, substantial and registered interest in the outcome of this suit; Telkom Kenya Limited holds a proprietary interest in a portion of the property (Plot No. The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 9/13

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2029, Section V, Mainland North) acquired by its predecessor in the 1970s on which it owns and operates a Very High Frequency (VHF) Microwave Station; and Steel Makers Limited holds a proprietary interest in two portions of the property, being Parcel Nos. 2026 and 2027, Section V, Mainland North, transferred to it by the previous registered proprietors. The rehearing ordered by the Supreme Court requires this Honourable Court to determine the history, ownership, subdivision and legal status of the Original Parcel together with its successor titles. Any findings made on those issues may directly affect the proprietary interests claimed by the Proposed Interested Parties. Unless joined, the Proposed Interested Parties risk being prejudiced by determinations concerning parcels in which they claim legally recognised interests without being afforded an opportunity to be heard. Their participation will therefore assist the Court in effectually and completely determining all the questions arising from the rehearing, protect their proprietary interests, and avoid the risk of further litigation over matters that can conveniently be resolved in these proceedings. The Proposed Interested Parties joinder accordingly satisfies both the test laid down by the Supreme Court in Trusted Society Case and Muruatetu Case and the principles articulated in the Meme Case namely that joinder is appropriate where it facilitates the complete determination of the issues in dispute, protects the legal rights of affected parties, and prevents a multiplicity of proceedings. The Responce The application is opposed by the respondent vide a replying affidavit of Omar Awadh Mbarak (hereinafter referred to as the respondent), who states that the application is misconceived, incompetent, an abuse of the court process and ought to be dismissed with costs. That this suit has been the subject of extensive litigation before this Honourable Court, the Court of Appeal and the Supreme Court. The proceedings culminated in the Judgment of the Supreme Court delivered on 23rd January 2026 in Supreme Court Petition No. E009 of 2024, by which this matter was remitted to this Honourable Court for rehearing. That prior thereto, the Court of Appeal in Mombasa Civil Appeal No. E028 Of 2022, particularly at paragraphs 36, 42 and 47 of its Judgment delivered on 23rd February 2024, identified the evidentiary deficiency in the proceedings before this Honourable Court, namely the absence of testimony from the custodians of the public land and survey records capable of explaining the disparity between the competing titles relied upon by the parties. The Supreme Court substantially agreed with the findings and reasoning of the Court of Appeal and remitted this matter to this Honourable Court for rehearing to enable the missing evidence from the relevant public officers to be received. At no point did either the Court of Appeal or the Supreme Court direct that additional Defendants or Interested Parties be joined to these proceedings. The respondent states that the Supreme Court Decree did not direct this Honourable Court The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 10/13

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to reopen the litigation for purposes of introducing fresh causes of action, additional parties The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 11/13

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or substantially different reliefs. The decree merely restored the matter for rehearing in accordance with the deficiencies identified by the appellate courts. The respondent contends that the Plaintiff’s own draft Amended Plaint that the proposed public officers are intended merely to produce public records and explain those records. Such evidence can properly be obtained through witness summons without converting those public officers into parties to these proceedings, particularly where no substantive relief is sought against them. The proposed Interested Parties are persons whose interests arise from easements, subdivisions or portions allegedly derived from the suit property. Those interests neither formed part of the original dispute nor render those entities necessary parties for purposes of determining the issues identified by the appellate courts. The Plaintiff now seeks declarations over seventeen (17) parcels created in 2022, declarations founded upon Article 40 of the Constitution, cancellation of titles and new reliefs never pleaded or litigated previously. These prayers demonstrate that the proposed amendment is not intended to facilitate the rehearing ordered by the Supreme Court but to commence an entirely new dispute under the guise of amendment. The respondent filed submissions one day to the ruling outside the time given by the court. The applicant did filed submissions timeously on the 8th August 2026. The gravamen of the Respondent’s submissions is that the Applicant has misconstrued the scope and effect of the Supreme Court’s remittal. The Supreme Court directed this Honourable Court to reconsider the dispute upon the basis of six specifically identified questions and, in answering those questions, to call for and examine relevant oral and documentary evidence from the relevant public offices. It did not direct the joinder of additional Defendants or Interested Parties, nor did it authorise the Applicant to introduce fresh causes of action, new substantive claims or substantially different reliefs. Indeed, the distinction is particularly important because, before delivering its Judgment of 23rd January 2026, the Supreme Court had already considered and dismissed an application by the very public officers whom the Applicant now seeks to join, namely the Attorney General on behalf of the Cabinet Secretary responsible for Lands, the Chief Land Registrar, the Director of Survey and the Director of Land Administration. In Freedom Limited v Mbarak; Attorney General on behalf of Cabinet Secretary, Ministry of Lands, Public Works, Housing and Urban Development & 3 others (Proposed Interested Parties) [2024] KESC 37 (KLR), the Supreme Court held that the proposed parties had not satisfied the threshold for joinder and that the dispute between the primary parties could be resolved without third-party intervention. The application was accordingly dismissed. According to the respondent, the Applicant cannot therefore properly rely upon the Supreme Court’s subsequent direction that the trial Court call for and examine evidence from public offices as authority for the proposition that the public officers themselves must now be converted into parties to the suit. The Respondent accordingly submits that the The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 12/13

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Application ought to be dismissed with costs. The respondent contends that the Supreme Court directed this Honourable Court to call for and examine evidence from public offices. It did not direct the joinder of the custodians of those records as parties to the suit. The orders remain binding unless otherwise discharged. The Court Of Appeal in Fred Matiang’i the Cabinet Secretary, Ministry of Interior and Co-ordination of National Government v Miguna Miguna & 4 others [2018] KECA 789 (KLR) cited the English Court of Appeal decision in HADKINSON vs. HADKINSON [1952] 2 ALL ER 562 stating the following on court orders: “Held (per Somervell and Romer, L.JJ.), that it was the unqualified obligation of every person against, or in respect of whom, an order had been made by a court of competent jurisdiction, to obey it unless and until that order was discharged…” According to the respondent, the Applicant’s interpretation would therefore convert an order for rehearing into an opportunity to substantially reconstruct the suit. With respect, that is not what the Supreme Court ordered. The Respondent does not oppose the production of the relevant public records or the attendance of the officers capable of explaining those records. Indeed, as expressly stated in paragraph 26 of the Replying Affidavit, the Respondent is ready and willing for the relevant officers from the Land Registry and the Directorate of Surveys to be summoned to testify and produce the official records identified by the appellate courts. The Respondent’s objection is therefore not to the evidence contemplated by the Supreme Court. It is to the Applicant’s attempt to transform an evidentiary direction into a basis for joinder and the introduction of a substantially expanded claim. ANALYISIS AND DETERMINATION Order 8 of the Civil Procedure Rules provides the process and requirements for amendment of pleadings. Under Order 8 Rule 1, a party may amend his pleadings without leave of the court at any time before the pleadings are closed. However, after the close of pleadings, a party must seek leave of the court before amending their pleading. This is prescribed under Order 8 Rule 3 of the Civil Procedure Act “[Order 8, rule 3.] Amendment of pleading with leave. (1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. Where an application to the court for leave to make an amendment such as is mentioned in sub rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub rule if it thinks just so to do. An amendment to correct the name of a party may be allowed under sub rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 13/13

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corrected was a genuine The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 14/13

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mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued. An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued. An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.” The general power to amend is also provided for under Order 8 Rule 5 which provides as follows: “For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.” Amendment of pleadings is to enable parties to alter their pleadings to reflect the true state of affairs which they intend to rely on. This was the position taken in the case of Institute For Social Accountability & Another vs Parliament of Kenya & 3 Others [2014] eKLR, where the court held as follows:“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings. The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and .that the amendment can be allowed without an injustice to the other side.” The Court of Appeal outlined the principles in amendment of pleadings in Elijah Kipngeno Arap Bii vs Kenya Commercial Bank Limited [2013] eKLR as follows:The Court of Appeal in Central Kenya Limited vs Trust Bank Limited (2000) 2 E.A 365 similarly set out the following principles that guide the court in considering an application for amendment of pleadings:“A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.” The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 15/13

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Amendment of pleadings is to enable parties to alter their pleadings to reflect the true state of affairs which they intend to rely on. This was the position taken in the case of Institute For Social Accountability & Another vs Parliament of Kenya & 3 Others [2014] eKLR, where the court held as follows: “The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. I have considered the application, the affidavits on record and do find that the Supreme Court of Kenya vide its judgment of 26th January 2026 placed a very enormous duty to this court by directing the rehearing of this Suit before this Court and the same be guided by specific and substantive factual and legal questions namely: a. The current legal status of the suit property; b. That at what stage and through what legal process did the Defendant’s grandfather (deceased) come into possession of the suit property; c. when and through what legal process was the suit property subdivided and/or surrendered to the Government and transferred to the Plaintiff; d. The Plaintiff’s root of title and an explanation for the existence of two different title numbers relating to the same property; and e. whether the land subject of this dispute is “agricultural land” under the Land Control Act. Joinder of parties is provided under Order 1 Rule 10(2) of the CPR, which provides as follows: “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 just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the 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.” (Emphasis added) While interpreting the above provision, the court in Julius Meme v Republic & another [2004] KEHC 2623 (KLR) (the Meme Case) held that joinder of parties will be permissible where: a. the presence of the party will result in the complete settlement of all questions involved in the proceedings; b. joinder will provide protection for the rights of a party who would otherwise be adversely affected in law; and c. joinder will prevent a likely course of proliferated litigation. The Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR (Civil Appeal No. 45 of 2014), held that the power to add a party to proceedings under Order 1 Rule 10(2) of the CPR is wide and discretionary. The Court emphasised that the overriding The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 16/13

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consideration is whether the proposed party has a sufficient interest in the dispute and whether, in that party's absence, the questions involved in the suit cannot be completely and effectively determined. Similarly, in Pravin Bowry v John Ward & another [2015] KECA 215 (KLR), the Court of Appeal while formulating the principles to be considered in an application for joinder of parties to a suit, cited with approval the case of Deported Asians Custodian Board vs Jaffer Brothers Ltd [1999] 1 E.A. 55 (SCU), where the Supreme Court of Uganda 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 effectually 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 effectually and completely adjudicate upon and settle all questions involved in the cause or matter… (Emphasis added) I have carefully discerned the direction by the Supreme Court and the above provisions of law and judicial authorities and do find that it is only fair that the government officers who transacted on the property in dispute to be made parties. 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. It is the courts view that the applicant has demonstrated that the Attorney General, the chief Land registrar and the Land Registrar, Mombasa County,the Director of Surveys, The Director, Land Administration; are necessary parties in this dispute. The Supreme Court remitted this matter to this court because of a serious Lacuna in the evidence adduced. The decision of the Supreme Court does not restrict this court from adding necessary parties in the matter. It is in the interest of justice that the above said be added as parties to enable court to make an effective determination of the suit. 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. Moreover, I do find substance in the application that Telkom Kenya Limited; and Steel Makers Limited be enjoined in this matter as the 2nd and 3rd interested parties as Kenya Pipeline has already been enjoined as the 1st interested party. 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. I do further order that the Attorney General and the interested parties be served within 5 days and that they do file their respective documents within 5 days of service. Costs in the cause SIGNED BY/FOR: The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 17/13

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★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-09-25 13:57:31 The Judiciary of Kenya Doc IDENTITY: 137685306150041552725372396 Tracking Number:OOJGKD2026 18/13

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