Francis Kagumba Gitonga & Another t/a Markton Bulk Suppliers v Kenya Civil Aviation Authority & Others; Ethics and Anti-Corruption Commission (Proposed 4th Defendant/Applicant)

RULING 1. Vide the Motion dated 24th April 2026, brought pursuant to the provisions of Sections 3 & 19 of the Environment and Land Court Act, Sections 3A & 63(e) of the Civil Procedure Act, and Order 1 Rule 10(2) of the Civil Procedure Rules, the Applicant seeks the following reliefs: i. This Honourable Court be pleased to join the Applicant to these proceedings as the 4 th Defendant (or in such other capacity as this Honourable Court may deem appropriate). ii. Upon joinder, this Honourable Court be pleased to grant the Applicant time complete investigations and file an appropriate response in the matter. iii. The costs of this application be in the cause. 2. The Motion is supported by the affidavit of Gertrude Sielei, an investigator with the Ethics and Anti-Corruption Commission (EACC), sworn on an even date. She deponed that the Commission, established under the Ethics and Anti-Corruption Commission Act, is mandated to investigate allegations of corruption, economic crimes, and the unlawful acquisition of public property, and to institute civil proceedings for its recovery where appropriate. 3. According to Ms Sielei, the Commission is investigating allegations that L.R. No. 39/I/R, a parcel of public land ELC NO. 375 OF 2013 RULING 2

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measuring approximately 87 acres in Embakasi and extending from the NSSF Embakasi Housing Estate to the current East African School of Aviation (EASA) premises, was unlawfully subdivided and allocated to private persons despite having been reserved for the Kenya Civil Aviation Authority (KCAA) and occupied by EASA. 4. Preliminary investigations, she explained, indicate that the suit property is public land that may have been illegally subdivided into 10 parcels giving rise to LR Nos. 9042/638645, LR No. 9042/664 and LR No. 9042/698; that the subdivisions comprising of 30 acres were registered in the name of third parties while the remaining 23.12 Ha (56.57 acres) was retained in the name of the KCAA (LR No. 9042/664) and that investigations also revealed that no part development plans exist to support its alienation, a fact said to be confirmed by a letter from the Director of Physical Planning dated 1st July 2025. 5. She noted that investigations are still at a preliminary stage and that the Commission requires additional time to complete them. It is averred that the Commission's joinder will enable the court to benefit from its investigative findings, facilitate the complete and effectual determination of the issues in dispute, particularly the legality of the title to the suit property, prevent a multiplicity of suits, and serve the public interest in the recovery of public assets. ELC NO. 375 OF 2013 RULING 3

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6. She maintained that no prejudice will be occasioned to any party by the Commission's joinder and that allowing the application will obviate the need for the Commission to institute separate recovery proceedings upon completion of its investigations. 7. In response, the Plaintiffs filed grounds of opposition dated 18th June, 2026 premised on the grounds that: i. The Application is misconceived and lacks legal basis ii. The Application is frivolous and vexatious as this matter is Part-heard. iii. The Application is an abuse of the Court process and aimed at frustrating the hearing of the Plaintiff's case. iv. The Applicant is not a necessary party in this proceedings since the Attorney General is already a party. Submissions 8. The Applicant filed written submissions dated 10 th July, 2026. Counsel submitted that the application is anchored on Order 1 Rule 10(2) of the Civil Procedure Rules, which empowers the court, at any stage of the proceedings, to join a party whose presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in dispute. 9. Counsel submitted that the Applicant, the Ethics and AntiCorruption Commission (EACC), is a constitutional and ELC NO. 375 OF 2013 RULING 4

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statutory body established under Article 79 of the Constitution and the Ethics and Anti-Corruption Commission Act, No. 22 of 2011, with the mandate to investigate corruption, economic crimes and the unlawful acquisition of public property, and where appropriate, institute proceedings for its recovery. 10. It was submitted that the Commission commenced investigations into allegations that the suit property, L.R. No. 39/I/R, being public land reserved for the Kenya Civil Aviation Authority (KCAA) and occupied by the East African School of Aviation (EASA), was unlawfully subdivided and alienated to private individuals. Counsel argued that preliminary investigations indicate that the suit property is public land that may have been irregularly alienated and that no Part Development Plans exist to support such alienation. 11. It was further submitted that the Applicant's investigations are still at a preliminary stage and that its participation in the proceedings will enable the court to benefit from its investigative findings, particularly on the legality of the title to the suit property, thereby facilitating the complete and effectual determination of all issues in controversy. Counsel contended that the Commission's participation would also serve the public interest, prevent a multiplicity of suits by obviating the need for separate recovery proceedings, and occasion no prejudice to the existing parties. ELC NO. 375 OF 2013 RULING 5

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12. Counsel cited Methodist Church in Kenya vs Mohamed Fugicha & 3 Others [2019] KESC 59 (KLR), where the Supreme Court reaffirmed that joinder is appropriate where a party's presence is necessary for the complete settlement of all questions in dispute, to protect legal rights, or to avoid multiplicity of proceedings. 13. Counsel also relied on Hillary Mwaita Kipkorir vs Kenya National Highways Authority [2022] KEELC 1955 (KLR) and Market Plaza Limited vs City Council of Nairobi & Another [2020] KEELC 1671 (KLR), where the courts recognized the Commission's statutory mandate to investigate and recover unlawfully acquired public property and held that its participation in proceedings involving public land is necessary to assist the court in fully determining the legality of the acquisition of such property while avoiding parallel litigation. 14. The 2nd and 3rd Defendants filed submissions dated 17th June, 2026. Counsel submitted that Article 252(1) of the Constitution as read together with Sections 11(1) and 13 of the Ethics and Anti-Corruption Commission Act, empowers the Applicant to institute and participate in proceedings for the recovery or protection of public property. 15. The question of whether the suit property was lawfully alienated from public land is a matter of public interest that the EACC has mandate to pursue. It was urged that although the Attorney General is the 3rd Defendant herein, ELC NO. 375 OF 2013 RULING 6

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it is not superfluous to join the Applicant who is a necessary party as per Order 1 Rule 10(2) of the Civil Procedure Rules. 16. Further, Counsel submitted that the Applicant is already seized of the complaint and possesses material evidence concerning the status, allocation and ownership of the suit property that will assist the court in determining the dispute. In particular, it was submitted that the absence of an approved part development plan raises significant questions regarding the legality of the allocation, and that the Applicant is best placed to produce the relevant evidence in accordance with the applicable rules governing documentary evidence. 17. It was further contended that determining the dispute in the Applicant’s implications for absence its could ongoing have far-reaching investigations into the recovery and protection of public land. 18. Counsel urged that no prejudice will be occasioned by the Applicant's joinder, as it will neither introduce a new cause of action nor alter the nature of the dispute. Instead, the Applicant's participation will assist the court in comprehensively determining the issues relating to the acquisition and ownership of the suit property. 19. It was deposed that any party requiring to respond to the Applicant's pleadings will be at liberty to seek leave to amend its pleadings. Conversely, excluding the Applicant risks an incomplete determination of the dispute and the ELC NO. 375 OF 2013 RULING 7

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possibility of multiple proceedings involving the same subject matter. The Plaintiff/Respondent had not filed submissions as at 4th August, 2026. Analysis and Determination 20. Having considered the Motion and responses, the sole issue that arises for determination is whether the Applicant should be joined into these proceedings as a Defendant. 21. The Applicant seeks to be joined as a Defendant in these proceedings on the basis that it is investigating allegations that the suit property formed part of public land reserved for the Kenya Civil Aviation Authority but was unlawfully subdivided and alienated to private persons. 22. It maintains that its participation will assist the court in determining the legality of the subdivision and acquisition of the suit property, avoid parallel recovery proceedings and facilitate the complete and effectual determination of the dispute. The application is supported by the 2 nd and 3rd Defendants, who similarly contend that the Applicant possesses relevant evidence and that its joinder is neither rendered unnecessary nor superfluous by the Attorney General’s participation in the suit. 23. In response, the Plaintiff contends that the application is misconceived, frivolous and vexatious, and amounts to an abuse of the court process intended to delay or frustrate the hearing of a matter that is already part-heard. It further argues that the Applicant is not a necessary party ELC NO. 375 OF 2013 RULING 8

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because the Attorney General is already joined as the 3 rd Defendant and can adequately represent the public interest in the proceedings. 24. The application is anchored on Order 1 Rule 10 (2) of the Civil Procedure Rules which provides: “(2)The court proceedings, may either at any upon stage or of the 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 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.” 25. On the joinder of Defendants, Order 1 Rule 3 of the Civil Procedure Rules is equally instructive. It provides that: “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 ELC NO. 375 OF 2013 RULING 9

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such persons any common question of law or fact would arise.” 26. The guiding principles on joinder of parties were succinctly stated by the Court of Appeal in Pravin Bowry vs John Ward & Another [2015] eKLR, citing with approval the Ugandan Supreme Court decision in Deported Asians Custodian Board vs Jaffer Brothers Ltd [1999] 1 E.A. 55 (SCU) where it was observed that: “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…For a person to be joined on the ground that his presence in the suit is necessary for effectual 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 plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined ELC NO. 375 OF 2013 RULING 10

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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 effectually 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.” 27. Similarly, the Court of Appeal in Civicon Limited vs Kivuwatt Limited & 2 Others [2015] eKLR reiterated that the power to join a party under Order 1 Rule 10 is discretionary, but must be exercised judicially and with the overriding objective of ensuring that all necessary parties to a dispute are before the court. The court observed: “Again, the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined.” ELC NO. 375 OF 2013 RULING 11

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28. The court in Civicon Limited(supra) further relied on its earlier decision in Meme vs Republic [2004] KLR 637, where it was held that joinder is permissible: “a. Where the presence of the party will result in the complete settlement of all the question involved in the proceedings; b. Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and c. Where the joinder will prevent a likely course of proliferated litigation” 29. The court is so guided. 30. From the pleadings and record before this court, the Plaintiff’s case is anchored on its claim of proprietorship over Land Reference Number 9042/800 situated in Embakasi. It is the Plaintiff’s case that it has at all times been the duly registered proprietor of the suit property until sometime in 2013 when upon visiting the parcel, it found that the Defendant was busy erecting a perimeter fence thereon. It seeks a permanent injunction restraining the Defendant from interfering with the same. 31. In its Defence and Counterclaim, KCAA asserts that, since its inception, it has been the sole owner and occupier of L.R. No. 39/I/R, measuring approximately 87 acres. It avers that, sometime in 2006, it discovered that approximately 30 acres had been excised from the ELC NO. 375 OF 2013 RULING 12

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property and subdivided into ten parcels, namely L.R. Nos. 9042/638–645, 9042/664 and 9042/698. KCAA further alleges that the Plaintiff’s parcel, L.R. No. 9042/800, was subsequently created from L.R. Nos. 9042/641–645. 32. The Applicant’s case is that it is investigating the alleged unlawful subdivision and alienation of L.R. No. 39/I/R, which it maintains was public land reserved for KCAA and occupied by EASA. It contends that its preliminary investigations indicate that approximately 30 acres was unlawfully excised from the original parcel and allocated to private persons. The Applicant contends that the evidence gathered concerning the planning, subdivision and allocation of the land is directly relevant to the legality of the Plaintiff’s title to L.R. No. 9042/800. 33. Considering the foregoing, it is readily apparent that the central issue in dispute is the legality of the subdivision and alienation of the original parcel, L.R. No. 39/I/R, and, consequently, the validity of the Plaintiff's title to L.R. No. 9042/800. These are the very matters that form the subject of the Applicant's ongoing investigations. 34. The Applicant's participation would therefore not introduce a new controversy into the proceedings. Rather, the evidence and investigative material in its possession may assist the court in tracing the process through which the suit property was created and determining whether its subdivision, allocation and eventual registration complied with the applicable law. ELC NO. 375 OF 2013 RULING 13

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35. That being so, the court is satisfied that the Applicant has demonstrated a sufficient and identifiable interest in the subject matter of these proceedings. Its investigations concern the same parcel of land and the very questions of subdivision, alienation and ownership that arise from the pleadings. Its participation may therefore assist the court in effectually and completely determining the dispute. 36. The court is, however, not persuaded that the Applicant ought to be joined as a Defendant. Neither the Plaintiff, in its plaint, nor the 2nd Defendant, in its defence and counterclaim, has pleaded any cause of action against the Applicant or sought any relief against it. 37. The court must also consider the advanced stage of the proceedings. The suit was instituted in 2013, and the trial has substantially progressed. Moreover, the Applicant admits that its investigations are still at a preliminary stage, with no definite indication as to when they will be concluded or what their outcome may be. 38. Joining the Applicant as a Defendant would likely necessitate amendments to the pleadings and the reopening of certain aspects of the trial to accommodate matters that are yet to crystallize. It would therefore be neither fair nor just to require the existing parties to await the completion of those investigations, as this would occasion further delay and prejudice in the determination of this long-standing dispute. ELC NO. 375 OF 2013 RULING 14

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39. In the circumstances, the court is satisfied that the Applicant's interest can be adequately protected through joinder as an Interested Party. Such joinder will enable the Applicant to place before the court the material it currently has arising from its investigations without altering the character of the proceedings or introducing a new adversarial relationship where none presently exists. 40. Accordingly, the prayer seeking to join the Applicant as the 4th Defendant is declined. Instead, the court directs as follows: a) The Applicant is hereby joined as an Interested Party to these proceedings. b) The Applicant is granted leave to file and serve, within 30 days, witness statements together with the bundle of documents upon which it intends to rely on. The existing parties shall have corresponding leave to file further witness statements and documents, if any, within 15 days of service. c) There shall be no orders as to costs. Dated, signed and delivered virtually in Nairobi this 8 th day of October, 2026. O. A. Angote Judge ELC NO. 375 OF 2013 RULING 15

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In the presence of: Mr. Njeru for Plaintiffs Mr. Muthama holding brief for Kiseka for proposed 4 th Defendant No appearance for 1st Defendant Court Assistant: Tracy ELC NO. 375 OF 2013 RULING 16

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