Damah Alliance Limited v Muthee & another; Muthee (Plaintiff to the Counterclaim); Registrar & 8 others (Defendant to the Counterclaim) (Environment and Land Case E204 of 2023) [2026] KEELC 93 (KLR) (22 January 2026) (Ruling)
Neutral citation:
[2026] KEELC 93 (KLR)
Republic of Kenya
Environment and Land Case E204 of 2023
CG Mbogo, J
January 22, 2026
Between
Damah Alliance Limited
Plaintiff
and
David Muthami Muthee
1st Defendant
Martin Ngige
2nd Defendant
and
David Muthami Muthee
Plaintiff to the Counterclaim
and
The Chief Land Registrar
Defendant to the Counterclaim
Nairobi City County
Defendant to the Counterclaim
Estate of James Titus Wambua
Defendant to the Counterclaim
Andrew Mutua Titus
Defendant to the Counterclaim
Charles Kimeli Muge (Sued as the Administrator of the Estate of Elphas Kimuge Kimnyago)
Defendant to the Counterclaim
Charles Kimeli Muge
Defendant to the Counterclaim
Abdirahman Gudle Mohamed
Defendant to the Counterclaim
Damah Alliance Limited
Defendant to the Counterclaim
Hidaya Alliance Group Limited
Defendant to the Counterclaim
Ruling
1.Before this court for determination is the notice of motion dated 26th June, 2025 filed by the 1st defendant/applicant in the counterclaim, and it is expressed to be brought under Sections 3 & 3A of the Civil Procedure Act, Order 1 Rule 10(2) and (4), Order 8 Rules 3 & 5 and Order 40 Rule 1 of the Civil Procedure Rules seeking the following orders:-1.Spent.2.That the honourable court be and is hereby pleased to grant leave to the 1st defendant/counter-claimant to amend his statement of defence and counterclaim dated 7th July, 2023 and Hidaya Alliance Group Limited be and is hereby joined to this suit as the 9th Defendant in the counterclaim.3.That the honourable court be and is hereby pleased to issue a temporary injunction to restrain the defendants in the counterclaim, either through their agents, servants, themselves or anyone claiming under them from leasing, charging, transferring, trespassing, developing or in any other manner whatsoever from dealing with Land Reference Number 36/v11/275 Eastleigh (original) now Nairobi/Block 49/91 pending the hearing and determination of the counterclaim herein.4.That the honourable court be and is hereby pleased to make such further orders it deems fit to grant.5.That the costs of this application be provided for.
2.The application is premised on the grounds inter alia that the plaintiff in the main suit filed a similar suit at the magistrates’ court being CMELC No. E211 of 2023 which was dismissed on 28th November, 2023. The application was further supported by the affidavit of the 1st plaintiff/applicant in the counterclaim which was sworn on even date.
3.The 1st plaintiff/applicant deposed that his advocate was served with the 8th defendant/respondent’s documents dated 13th June, 2025 which documents disclosed that the suit property had been sold to Hidaya Alliance Group Limited, the intended 9th defendant/respondent.
4.He deposed that it was necessary to enjoin the said company, and further, that the 7th and 8th defendants/respondents purported to enter into a sale agreement with the intended 9th defendant/respondent with the knowledge of this pending suit. It was further deposed that the defendants/respondents in the counterclaim have since conspired to defeat the ends of justice, and that they also have no good title to the suit property.
5.He deposed that the suit property was originally known as 36/v11/275 Eastleigh but it has since converted to Nairobi/Block 49/91, and he urged the court in the interest of justice to allow the application as prayed.
6.The application was opposed vide the 7th and 8th defendants’/respondents’ grounds of opposition dated 11th September, 2025 challenging the application on the following grounds:-1.The application is fatally defective for want of proper service upon the proposed party to be joined. This being the first service of the said application, personal service or, in the alternative, service pursuant to an order for substituted service was required but has not been effected or demonstrated.2.Proper service of process is a jurisdictional prerequisite. In the absence of effective service, this honourable court lacks jurisdiction to entertain the application.3.The application offends the mandatory provisions of the Civil Procedure Rules relating to service of pleadings and applications and is therefore incompetent, null and void ab initio.4.Failure to effect proper service deprives the proposed party to be joined of a fair and reasonable opportunity to be heard, contrary to the principles of natural justice and Article 50 of the Constitution.5.The 7th & 8th respondents cannot be deemed to hold brief for or represent the interests of the proposed new party, who has not been properly brought before the court in accordance with the law.6.To the extent that the application seeks substantive orders without satisfying the threshold of proper service and joinder, the same amounts to an abuse of the process of this honourable court.7.The defects in service go to the root of the application and cannot be cured by Article 159(2)(d) of the Constitution or the overriding objectives under Sections 1A and 1B of the Civil Procedure Act, as service of process is not a mere technicality but a fundamental requirement.
7.The application was further opposed by the 7th and 8th defendants/respondents vide the replying affidavit sworn of the 7th defendant/respondent and Dawid Abdulrahman Sheikh (a former director of the 8th defendant/respondent) sworn on 21st October, 2025.
8.The 7th and 8th defendants/respondents deposed that the plaintiff/applicant failed to physically serve the 9th defendant/respondent with this application, and thus the prayer to have it enjoined to the suit can only be allowed upon proof of service, in this case vide substituted service. Further, that the plaintiff/applicant had made a similar application seeking temporary injunction in Nairobi ELC Pet No. E012 of 2023 which application was dismissed thus the same cannot be issued.
9.The 7th and 8th defendants/respondents deposed that the plaintiff/applicant went further to file an appeal against the ruling vide Appeal No. E063 of 2024 which appeal was dismissed. They urged the court to dismiss the application as it had already been determined by the Court of Appeal.
10.The application was canvassed by way of written submissions. The plaintiff/applicant filed his written submissions dated 2nd December, 2025. The 7th and 8th defendants/respondents filed their written submissions dated 18th December, 2025.
11.I have considered the application, the grounds of opposition thereof, the replying affidavit and the written submissions filed by the parties. The two issues for determination are, whether the intended 9th Respondent should be joined to the suit and whether the plaintiff/applicant is entitled to an order of temporary injunction.
12.Order 1 Rule 10(2) of the Civil Procedure Rules provides as follows:-
13.In the case of Ongenga v Sioka; Wanjala (Intended Defendant) [2022] KEELC 12639 (KLR) the court cited with approval the case of Technomatic Limited T/A Promopack Company v Kenya Wine Agencies Limited & another [2014] eKLR where Havelock J set out the guiding principles in joining a party to a suit as follows:-1.He must be a necessary party.2.He must be a proper party.3.In the case of a defendant there must be a relief flowing from that defendant to the plaintiff.4.The ultimate order or decree cannot be enforced without his presence in the matter.5.His presence is necessary to enable the court to effectively and completely to adjudicate upon and settle all questions involved in the suit.
14.The plaintiff/applicant in the counterclaim contended that the intended 9th defendant/respondent is a necessary party to this case since it emerged that the 7th and 8th defendants/respondents sold the suit property to him. Save to argue the need to join the intended 9th defendant/ respondent, the plaintiff/applicant has not pleaded any ground(s) in his application i.e. the grounds and the supporting affidavit, to justify the prayers of a temporary injunction pending determination of the counterclaim.
15.The 7th and 8th defendants/respondents on the other hand opposed the said joinder on the basis that the intended 9th defendant/respondent was not served with the documents. More importantly, they objected to the application for injunction for the reason that a similar application was filed and dismissed in ELC Constitutional Petition No. E012 of 2023 vide the ruling delivered on 31st January, 2024 and the ruling delivered by the Court of Appeal on 26th July, 2024 in Civil Application No. E063 of 2024.
16.I have perused the annexures contained in the supporting affidavit of the plaintiff/ applicant. There is an agreement for sale dated 9th February, 2024 between the 8th defendant/respondent and the intended 9th defendant/respondent as well as a duly executed transfer instrument. It is this court’s view that pursuant to Order 1 Rule 10 of the Civil Procedure Rules as well as the principles outlined in the case of Technomatic Limited (supra), there is reason enough to join the intended 9th defendant/respondent in these proceedings. I am also satisfied that the intended 9th defendant/respondent has an identifiable stake in this suit and therefore a necessary party to enable this court reach a just determination.
17.While the 7th and 8th defendants/respondents vehemently opposed the said joinder, Order 1 Rule 10 (4) of the Civil Procedure Rules provides reprieve and it provides:-
18.In other words, the cure to ensure that the intended 9th defendant/respondent participates in these proceedings is through amendment of the plaint. I say so noting that the hearing of this matter is yet to commence. More importantly, there is no prejudice that has been shown by the 7th and 8th defendants/respondents that they will likely suffer as a result thereof.
19.On the second issue, it is not in dispute that the plaintiff/applicant in the counterclaim sought similar orders of injunction in Nairobi ELC Petition No. E012 of 2023 which was dismissed in the ruling delivered on 31st January, 2024. The plaintiff/applicant went further and filed an appeal vide Nairobi Civil Appeal No. E063 of 2024 which appeal was also dismissed.
20.Section 7 of the Civil Procedure Act provides that:
21.It is trite law that a person shall not commence more than one action in respect of the same or a substantially similar cause of action and the court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions.
22.In the case of Uhuru Highway Development Ltd v Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni the court in an earlier application ruled that:-
23.The Court of Appeal further stated that:-
24.Indeed, there exists an order by this court dated 31st January, 2024 emanating from the plaintiff/applicant’s application dated 6th September, 2023. In the said application, the issue of temporary injunction was heard and determined by this court. It is this court’s view that the matters were directly and substantially in issue as those in the instant application as well as the parties. The ruling by the superior court delivered on 26th July, 2024 further dismissing the appeal is final as regards the prayers of a temporary injunction. In sum, prayer no. 3 was already determined and thus res judicata.
25.The upshot of the foregoing is that the instant application partially succeeds in terms of prayer 2 only, and the same is allowed in the following terms: -i.Hidaya Alliance Group Limited is hereby joined in this suit as the 9th defendant in the counterclaim.ii.Leave is hereby granted to the plaintiff/ applicant in the counterclaim/ and or the 1st defendant in the main suit to amend his statement of defence and counterclaim dated 7th July, 2023.iii.Costs shall be in the cause.It is so ordered.
DATED, SIGNED & DELIVERED VIRTUALLYTHIS 22ND DAY OF JANUARY, 2026.HON. MBOGO C.G.JUDGE22/01/2026.In the presence of:Ms. vena Aron - Court assistantMr. Onsembe holding brief for Mr. Ongegu for the Plaintiff/Applicant in the counter-claimMr. Mohamed for the 7th & 8th Defendants in the counter-claim and holding brief for Mr. Isiji for the 5th & 6th Defendants in the counter-claimMr. Alfred holding brief for Mr. Owuor for the 2nd Defendant in the counter-claim