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ELCPartially Allowed· [2025] KEELC 4742 (KLR)

Parsere & another (Suing as Administrators of the Estate of Peter Parsere Saire - Deceased) v Toyanga & another; Weru & another (Interested Parties) (Environment & Land Case E025 of 2024) [2025] KEELC 4742 (KLR)

Environment and Land Court
26 June 2025
LKL. Komingoi
1,933 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court kept all parties in a family land dispute and blocked a landowner from denying her in-law's livestock access to a shared watering point.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L. Komingoi, J) determined two applications in a land dispute between siblings-in-law over estate land. First, the 2nd Defendant's Notice of Motion dated 25th November 2024 sought his removal from the suit on the ground that no cause of action was disclosed against him, and that his inclusion as a public figure and community elder damaged his reputation. The 1st Plaintiff, a co-administrator of her late husband's estate, opposed, contending that the 2nd Defendant, an administrator of their father's estate, participated in the dispute, including an arrangement whereby six acres carved from her late husband's portion would be shared among the brothers. The court, applying Order 1 Rules 3, 9 and 10(2) of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, held that misjoinder is not fatal to a suit, that joinder issues are procedural and must not defeat substantive justice, and dismissed the application with no orders as to costs. Second, the 1st Defendant's Notice of Motion dated 2nd September 2024, brought under Section 140 of the Land Act and Order 51 Rule 1, sought a temporary injunction restraining the 1st Plaintiff from blocking his access to a watering place on KJD/Olchor Onyore/29670 through KJD/Olchor Onyore/29669. Finding the averments uncontroverted, the court granted the injunction pending the hearing and determination of the suit, directed the OCPD Isinya to ensure compliance, and ordered costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the 2nd Defendant was wrongly joined and ought to be struck out

Holding

Application to strike out the 2nd Defendant dismissed; he remains a party

Reasoning

The court applied Order 1 Rules 3, 9 and 10(2), holding that misjoinder is not fatal and joinder questions are procedural. The Plaintiff asserted the 2nd Defendant participated in the dispute over the estate land. Article 159(2)(d) requires substantive justice without undue regard to technicalities, and parties may be added or removed at any stage before judgment.

p. 3
02

Whether a temporary injunction should issue restraining the 1st Plaintiff from blocking access to the watering place

Holding

Injunction granted restraining the 1st Plaintiff from denying the 1st Defendant access through KJD/Olchor Onyore/29669 to the watering place at KJD/Olchor Onyore/29670 pending the hearing and determination of the suit

Reasoning

The 1st Defendant averred there had always been an access road to the watering place through the neighbouring parcel and that the 1st Plaintiff had blocked it. The court found these averments were not controverted by the Plaintiff and accordingly found merit in the application.

p. 5

Legal principles established

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  • Misjoinder or non-joinder of parties is not fatal to a suit; procedural technicalities on joinder should not override the duty to administer substantive justice under Article 159(2)(d)
  • Order 1 Rule 10(2) empowers the court at any stage to strike out improperly joined parties or add necessary parties

Court orders

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  1. 1.The application dated 25th November 2024 seeking removal of the 2nd Defendant is dismissed with no orders as to costs
  2. 2.A temporary injunction is issued restraining the 1st Plaintiff, her servants and/or agents from constructing, barricading or in any other way denying the 1st Defendant, his agents and/or his livestock access to the watering place located at KJD/Olchor Onyore/29670, the access which goes through KJD/Olchor Onyore/29669, pending the hearing and determination of the suit
  3. 3.The OCPD Isinya to ensure compliance with the injunction
  4. 4.Costs of the injunction application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rules 9, 10(2), 14, 25; Order 1 Rule 3; Order 10 Rule 1(2); Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A
  • Land ActSection 140
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (intended Plaintiff)
    (2022) eKLR
  • Meme vs Republic
    [2004] KLR 637
  • Civicon Ltd vs Kivuwatt Ltd & 2 others
    [2015] KECA 588 (KLR)
Jurisdiction invoked
Original civil jurisdiction; applications brought under Order 1 Rules 9, 10(2), 14 & 25, Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 140 of the Land Act, 2021; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Parsere & another (Suing as Administrators of the Estate of Peter Parsere Saire - Deceased) v Toyanga & another; Weru & another (Interested Parties) (Environment & Land Case E025 of 2024) [2025] KEELC 4742 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4742/eng@2025-06-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.