Abade & 306 others v Karima & 3534 others [2024] KEELC 14080 (KLR)
Full Case Text
Abade & 306 others v Karima & 3534 others (Enviromental and Land Originating Summons 1257 of 2014 & 252 of 2011 & Environment & Land Case 509 of 2014 (Consolidated)) [2024] KEELC 14080 (KLR) (9 December 2024) (Ruling)
Neutral citation: [2024] KEELC 14080 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Enviromental and Land Originating Summons 1257 of 2014 & 252 of 2011 & Environment & Land Case 509 of 2014 (Consolidated)
AA Omollo, J
December 9, 2024
Between
John Otieno Abade & 299 others & 299 others
Applicant
and
Teresia Wairimu Karima
1st Respondent
Anne Wangare Kirima
2nd Respondent
As consolidated with
Enviromental and Land Originating Summons 252 of 2011
Between
Stephen Maina Mwendwa
1st Plaintiff
Martin Irungu Muturi
2nd Plaintiff
Samuel Alila Awuor
3rd Plaintiff
Charles Kojo Ager
4th Plaintiff
John Ndirangu Ndegwa
5th Plaintiff
Harisson Kiragu Gachuru
6th Plaintiff
Suing as the officials of Manatuto Self Help Group and on behalf of 1310 others
and
Alice Njeri Kirima, Anne Wangari Kirima & James Njuguna Kirima (Sued as Court -Appointed Administrators, Trustees or Signatories of the Estate of Gerishon Karmau Kirima - Deceased )
1st Defendant
John Gerishon Kirima
2nd Defendant
As consolidated with
Environment & Land Case 509 of 2014
Between
Naridai Muoroto Self-Help Group (Suing through its officials, John Maina Mwangi, Samuel Nyamohanga & Anthony Nyongesa Wafula)
Plaintiff
and
Abdikadir Halakhe Jirma
1st Proposed Interested Party
Abide For Christ Church & Ministry
2nd Proposed Interested Party
Abininassir Hassan Mohamed
3rd Proposed Interested Party
Ado Cheka Mwaniki
4th Proposed Interested Party
Aggrey Olango Ogama
5th Proposed Interested Party
Akai Regina
6th Proposed Interested Party
Al Aqsa Mosque
7th Proposed Interested Party
Alan Achiando
8th Proposed Interested Party
Alex Mwangi
9th Proposed Interested Party
Alfred Lusenaka
10th Proposed Interested Party
Alfred Mugoya Aoko
11th Proposed Interested Party
Alfred Omondi Arudna
12th Proposed Interested Party
Alfred Ouma Odanga
13th Proposed Interested Party
Alfrick Opidi
14th Proposed Interested Party
Alice Adhiambo
15th Proposed Interested Party
Alice Nanyama
16th Proposed Interested Party
Allan Ochieng Achiando
17th Proposed Interested Party
Amos Kigen Kosgei
18th Proposed Interested Party
Amos Omari
19th Proposed Interested Party
Amos Omondi Ochieng
20th Proposed Interested Party
Anerico Ouma Oduor
21st Proposed Interested Party
Anita Adhiambo Oteku
22nd Proposed Interested Party
Ann A Ongiri
23rd Proposed Interested Party
Ann Akinyi Gundo
24th Proposed Interested Party
Ann Kerubo
25th Proposed Interested Party
Ann Savala
26th Proposed Interested Party
Anna Adhiambo
27th Proposed Interested Party
Annah Kerubo Nyaosi
28th Proposed Interested Party
Annastacia K Mwema
29th Proposed Interested Party
Annastacia Muthoki
30th Proposed Interested Party
Annastacia Mwinzi
31st Proposed Interested Party
Anne Baraka
32nd Proposed Interested Party
Anne Nduta
33rd Proposed Interested Party
Anton Mbanda
34th Proposed Interested Party
Antony Anyega Marungu
35th Proposed Interested Party
Antony Maina
36th Proposed Interested Party
Antony Mungai Kariti
37th Proposed Interested Party
Antony Mwangi Wanyoike
38th Proposed Interested Party
Antony Njuguna
39th Proposed Interested Party
Anyim Imelda Pauline
40th Proposed Interested Party
Aristarico Ojuedo Onyango
41st Proposed Interested Party
Arnest Ochieng Akelo
42nd Proposed Interested Party
Austine Otieno
43rd Proposed Interested Party
Awino Kakoth Charles
44th Proposed Interested Party
Ayele Kimbo Kura
45th Proposed Interested Party
Ayub Omondi Oluoch
46th Proposed Interested Party
Barnabas Nyonda
47th Proposed Interested Party
Beatrice Akinyi Odhiambo
48th Proposed Interested Party
Benard Ayuma Ongeri
49th Proposed Interested Party
Benard M Mantibe
50th Proposed Interested Party
Benard Mobagi
51st Proposed Interested Party
Benard Obonyo
52nd Proposed Interested Party
Benard Ondieki
53rd Proposed Interested Party
Benard Onyango Omweno
54th Proposed Interested Party
Benard Onyango Osino
55th Proposed Interested Party
Benard Rasungu
56th Proposed Interested Party
Benedict Eronde
57th Proposed Interested Party
Benedict Mutua Kisilu
58th Proposed Interested Party
Benjamin Otieno Onyolo
59th Proposed Interested Party
Benson Ikumba Kamau
60th Proposed Interested Party
Benson Mafura
61st Proposed Interested Party
Benson Mwangi
62nd Proposed Interested Party
Benson Ogilo
63rd Proposed Interested Party
Benson Okote
64th Proposed Interested Party
Benson Onganga
65th Proposed Interested Party
Benson Wnayonyi Mafura
66th Proposed Interested Party
Bere Golicha Choke
67th Proposed Interested Party
Bernadette Bonareri Nyakeya
68th Proposed Interested Party
Bernard Odongo
69th Proposed Interested Party
Bethwel Ochieng Odit
70th Proposed Interested Party
Betty Shisanya
71st Proposed Interested Party
Bilha Adhiambo
72nd Proposed Interested Party
Billiah Mmbasa
73rd Proposed Interested Party
Billiah Mbasu
74th Proposed Interested Party
Billiah Monyenye Paul
75th Proposed Interested Party
Boaz Obara
76th Proposed Interested Party
Brian Omondi Juma
77th Proposed Interested Party
Brigid Ndombi Namulanda
78th Proposed Interested Party
Brown Shighali Magani
79th Proposed Interested Party
Caleb Isiji Lumwayi
80th Proposed Interested Party
Calvin Obiero
81st Proposed Interested Party
Calvin Olela
82nd Proposed Interested Party
Calvin Omondi Otieno
83rd Proposed Interested Party
Calvin Wasonga Omondi
84th Proposed Interested Party
Calvince Okoth Otulo
85th Proposed Interested Party
Caroline Achieng’ Ochara
86th Proposed Interested Party
Caroline Akinyi
87th Proposed Interested Party
Caroline Anyango
88th Proposed Interested Party
Carolyne Mima
89th Proposed Interested Party
Charle Kakoth
90th Proposed Interested Party
Charles Adega Omondi
91st Proposed Interested Party
Charles Aput
92nd Proposed Interested Party
Charles Aran Akumu
93rd Proposed Interested Party
Charles Awuonda
94th Proposed Interested Party
Charles Awuonda Angienda
95th Proposed Interested Party
Charles Cheruiyot
96th Proposed Interested Party
Charles Jaoko
97th Proposed Interested Party
Charles Keya
98th Proposed Interested Party
Charles Mwamba
99th Proposed Interested Party
Charles Nyagigo Opondo
100th Proposed Interested Party
Charles Nyaoke
101st Proposed Interested Party
Charles O Okusi
102nd Proposed Interested Party
Charles Okari
103rd Proposed Interested Party
Charles Otieno Aput
104th Proposed Interested Party
Charles Otieno Nyamanga
105th Proposed Interested Party
Charles Ouma Mwamba
106th Proposed Interested Party
Charles Samba Ogweyo
107th Proposed Interested Party
Chato Ado Daro
108th Proposed Interested Party
Christ The Head Of Church Africa
109th Proposed Interested Party
Christine Achieng
110th Proposed Interested Party
Christine Achieng’ A
111th Proposed Interested Party
Christine Mumbua
112th Proposed Interested Party
Christopher Theuri
113th Proposed Interested Party
Collins Ayier
114th Proposed Interested Party
Collins Kwena
115th Proposed Interested Party
Collins Liko Abere
116th Proposed Interested Party
Collins Ojwang’
117th Proposed Interested Party
Cornel Odhiambo Okengo ..
118th Proposed Interested Party
Cynthian Aluoch Awiti
119th Proposed Interested Party
Dalmas Oriya
120th Proposed Interested Party
Dalmas Ouma Owuor
121st Proposed Interested Party
Dan Akumu
122nd Proposed Interested Party
Dan Bosco Muia
123rd Proposed Interested Party
Daniel Chemoiywo
124th Proposed Interested Party
Daniel Gitanga Mayaka
125th Proposed Interested Party
Daniel Musyoka Muvali
126th Proposed Interested Party
Daniel Okeyo
127th Proposed Interested Party
Daniel Okoth Aheri
128th Proposed Interested Party
Daniel Osusu Nyamosi
129th Proposed Interested Party
David Adwera
130th Proposed Interested Party
David Mutisya
131st Proposed Interested Party
David Obonyo
132nd Proposed Interested Party
David Odiyo Odiyo
133rd Proposed Interested Party
David Radiala
134th Proposed Interested Party
Dawin Ouma
135th Proposed Interested Party
Denedict Enonde
136th Proposed Interested Party
Denis Mose
137th Proposed Interested Party
Denis Omao
138th Proposed Interested Party
Dennis Awuonde
139th Proposed Interested Party
Dennis Keongo Nyaema
140th Proposed Interested Party
Dennis M Mabia
141st Proposed Interested Party
Dennis Meja Oigo
142nd Proposed Interested Party
Dennis Njogu
143rd Proposed Interested Party
Dennis Nyakundi
144th Proposed Interested Party
Dennis Onyango Ojowi
145th Proposed Interested Party
Dennis Opel
146th Proposed Interested Party
Dennis Ososo
147th Proposed Interested Party
Dickens Martin Okeyo
148th Proposed Interested Party
Dickson Kimondo
149th Proposed Interested Party
Dickson Murunga Wayelo
150th Proposed Interested Party
Difna Limareng
151st Proposed Interested Party
Dominic Bosire
152nd Proposed Interested Party
Dominic Oyugi Bosire
153rd Proposed Interested Party
Dorah Adhiambo
154th Proposed Interested Party
Nicholus K Ngetich
155th Proposed Interested Party
Dorothy Ajiambo
156th Proposed Interested Party
Dorothy Ogutu Akinyi
157th Proposed Interested Party
Duncan Mutemi
158th Proposed Interested Party
Duncan Otieno Nyangore
159th Proposed Interested Party
Duncan Ouma Wabwire
160th Proposed Interested Party
Duncan Ouma Wabwire
161st Proposed Interested Party
Duncan Ouma Wabwire
162nd Proposed Interested Party
Edward Keya
163rd Proposed Interested Party
Edward M Mantibe
164th Proposed Interested Party
Edward Odhiambo
165th Proposed Interested Party
Edward Ombati Manyibe
166th Proposed Interested Party
Edward Otieno
167th Proposed Interested Party
Edward Sanya
168th Proposed Interested Party
Edwin Ochieng’ Edwin Ouma Juma
169th Proposed Interested Party
Edwin Ouma Juma
170th Proposed Interested Party
Edwina Ochieng
171st Proposed Interested Party
Edwine O Olare
172nd Proposed Interested Party
Ekaya Almasi
173rd Proposed Interested Party
Ekaya Alumasi Ghonzour
174th Proposed Interested Party
Ekaya Alumasi Ghonzou
175th Proposed Interested Party
Elias Randiga Aron
176th Proposed Interested Party
Elias Randiga Aron
177th Proposed Interested Party
Elizabeth Anindo
178th Proposed Interested Party
Elizabeth Mbeya
179th Proposed Interested Party
Elizabeth Njuguna
180th Proposed Interested Party
Elizabeth Wankiru Gathagu
181st Proposed Interested Party
Elkana Sereti Motanya
182nd Proposed Interested Party
Elkanah Mokua Nduma
183rd Proposed Interested Party
Ellis Omondi
184th Proposed Interested Party
Elly Ojwala
185th Proposed Interested Party
Elly Walwenda
186th Proposed Interested Party
Emilly Ogata
187th Proposed Interested Party
Emily Henry
188th Proposed Interested Party
Emma Muthoni Kimani
189th Proposed Interested Party
Emmanuel Andala
190th Proposed Interested Party
Emmanuel Ouma Andala.
191st Proposed Interested Party
Eric N Omoro
192nd Proposed Interested Party
Eric Omondi Otieno
193rd Proposed Interested Party
Eric/Peter/Bilha
194th Proposed Interested Party
Erick Misiani
195th Proposed Interested Party
Erick Ochieng
196th Proposed Interested Party
Erick Ochillo
197th Proposed Interested Party
Erick Odhimabo Otulo
198th Proposed Interested Party
Erick Okiso
199th Proposed Interested Party
Erick Omondi
200th Proposed Interested Party
Erick Otieno
201st Proposed Interested Party
Erickson Shikoch
202nd Proposed Interested Party
Esbon Irungu Kamau
203rd Proposed Interested Party
Esboru Masita
204th Proposed Interested Party
Esther Adhiambo Achiando
205th Proposed Interested Party
Esther Akoth Urime
206th Proposed Interested Party
Esther Antony
207th Proposed Interested Party
Esther Gacheri
208th Proposed Interested Party
Esther Josephine Munjuga
209th Proposed Interested Party
Esther K Werunga
210th Proposed Interested Party
Esther Mumbi Munuve
211th Proposed Interested Party
Esther Njogu
212th Proposed Interested Party
Esther Nyaga
213th Proposed Interested Party
Eunice Adhiambo
214th Proposed Interested Party
Eunice Wairimu Ndegwa
215th Proposed Interested Party
Evaline Akumu
216th Proposed Interested Party
Evalyne Malusa
217th Proposed Interested Party
Evangelical Christ Church Of Africa (Isaiah)
218th Proposed Interested Party
Evans Akoko Oyare
219th Proposed Interested Party
Evans Momanyi Nyambane
220th Proposed Interested Party
Evans Odero
221st Proposed Interested Party
Evans Orende Evans Orende
222nd Proposed Interested Party
Evans Oseko Mageto
223rd Proposed Interested Party
Evelyne Oliech
224th Proposed Interested Party
Everliine A Alabu
225th Proposed Interested Party
Everline White Okita Everline White Okita
226th Proposed Interested Party
Everlyn Kawila Mutemi
227th Proposed Interested Party
Ezekiel O Rakinda
228th Proposed Interested Party
Faith Achieng Mienje
229th Proposed Interested Party
Faith Nyaura
230th Proposed Interested Party
Fatuma Hussein & 3300 others & 3300 others
231st Proposed Interested Party
Ruling
1. The proposed 3531 interested parties filed two applications dated 13/11/2023 and 9/4/2024 seeking the following orders:1Spent2. That this Honourable Court be pleased to enjoin the Proposed Interested Parties/Applicants to the suit herein.3. That pending the hearing of this Application, this Honourable Court be pleased to issue an order of Stay of execution of the Court Order dated 23rd October 2023 directing that the proposed Interested Parties/Applicants who are in occupation of part of L.R. No. 6825/2 and L/R No. 5908/8 to vacate the said properties by the 31st of December 2023 in default, the Defendants/Respondents be at liberty to forcefully evict them.4. That pending the hearing and determination of this Application, that Status Quo be maintained in favour of the proposed Interested Parties/Applicants herein.5. That pending the hearing and determination of the Application, this Honourable Court be pleased to issue an Order extending the period for which the Proposed Interested Parties/Applicants are to vacate the properties they presently occupy within the properties known as L.R. No. 6825/2 and L.R. No. 5908/8 for a period of ninety (90) days from the 31st of December 2023. 6.That pending the hearing and determination of this Application, this Honourable Court be pleased to issue an Order of injunction restraining the Defendants/Respondents (anne Wangare Kirima And Theresia Wairimu Kirima) and/or their agents, servants and or assigns from forcefully evicting the Proposed Interested Parties/Applicants from the plots they each presently occupy within the properties known as L.R No. 6825/2 and L.R. No. 5908/87That costs of this Application be provided for.8. That such further and/or other orders be made as the court may deem fit and expedient.
2. The Applications were premised on the grounds set on its face and the affidavits sworn in support thereof.
3. The applications were opposed vide the replying affidavits of Teresia W. Karima; Paul Ndungu Kioi and grounds of opposition dated 6/2/2024 by Anne Wangari Kirima, Mr. Kioi urged the Court to take judicial notice of the application pending before the Court of Appeal. He deposed that the Court of Appeal already gave status quo orders pending the hearing of the various applications filed against the judgement. Hence the prayers for stay of execution has been overtaken by events of having been dealt with by a higher court.
4. On joinder of parties, the Respondents aver that the court is functus officio. Further that the Applicants do not desire to have the judgment altered in any way hence their joinder to these proceedings will serve no useful purpose. With regard to the motion dated 31/10/2023 by Gwandaru & Associates to join Bernado Vicezo De Masi as an Interested Party, Mr. Kioi reiterated that the court is functus officio and any dissatisfied party ought to move to the Court of Appeal.
5. He averred that the application for setting aside the judgment is sub judice considering the existence of Civil Appeal NO E022 of 2024; Dennis Otieno Ounda and 4 others -Vs Teresia Wairimu Kirima & 28 Others and NBI Court of Appeal CA NO E012 of 2023 – Naridai Muoroto Self Help Group Vs James Gitundu & Others. That the application does not come within the parameters of Order 45 of the Civil Procedure Rules.
Analysis and Determination 6. The Applicants in the applications dated 13/11/2023 and 9/4/2024 want this court to join them as Interested Parties to the consolidated suits under the provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules. The said rule provides thus:(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 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.
7. The purpose of joinder is stated that it is to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. In this case, the suit is already heard and determined. The 3531 proposed interested parties are seeking to join the suit post judgment. As deposed by Mr Kioi, they have not sought to alter the existing judgment in anyway. The additional prayer besides joinder is for an order of injunction restraining their eviction from properties L.R NO 6825/2 and 5908/8.
8. An order of injunction staying the execution of a decree can only be granted pending an event such as setting aside the decree or determination of an appeal. These Applicants have not prayed for either of the two events hence there would be no basis to grant the injunction orders prayed. In any event, it is pleaded that there is already an order for status quo issued by the Court of Appeal in a related matter. The order of status quo means that the Applicants are beneficiaries and will not suffer any risk of being evicted. I conclude by stating that the Applicants have not demonstrated by they should be joined to these proceedings. The application dated 13/11/2023 and 9/4/2024 are dismissed with no order on costs.
9. The 2nd application for joinder is dated 31/10/2023 seeking to join Bernado Viazo De Masi as an Interested Party. Besides joinder, he also prays that the judgment and decree be reviewed and/or set aside to enable a retrial. The grounds for setting aside a regular judgment were laid down in the case of Shah Vs Mbogo ( ) E.A inter alia that the Applicants have a god defence to the claim.
10. The subject matter in this case was claim for adverse possession by the plaintiff particularly in ELC 1257 of 2014. One of the grounds listed in support of this mortion is that the estate of Dominico De Masi (Deceased) owns the suit property and they were shocked to lean that the estate of Gershom Kirima and John Gerishon Kirima were also claiming the land L.R 5908/8. That the emergence of the estate of Dominico De Masi as the owner of L.R 5908/8 is an important matter to warrant the review of the judgment.
11. Thus, the nature of defence this new person intends to raise is that of ownership. As between the existing parties, the plaintiffs claimed ownership through purchase and occupation. The ownership of Dominico De Masi is independent of the interests of the existing parties to be litigated on its own and in my view does not constitute a cause to review the judgment before a determination is made of who between the Kirima’s and the Applicant own the suit property.
12. I am alive to the fact that the Applicant is a party to a new suit filed vide ELC LC PET. NO E027 of 2023 where the pertinent issues of ownership of the suit properties can be determined. For now, the present application is premature and I hereby proceed to strike it out. Each party shall bear their respective costs.
DATED, SIGNED & DELIVERED AT NAIROBI THIS 9THDAY OF DECEMBER, 2024. VIA EMAIL.A. OMOLLOJUDGE