Easley v Hamed & 2 others (Environment and Land Case 368 of 2009) [2026] KEELC 4163 (KLR)

5. That upon the grant of prayer 4, leave be granted to the plaintifi to amend its pleadings to accommodate the joinder of the applicant as defendant and corresponding directions and orders be issued for the filing of defence to amended pleadings and hearing of the applicant’s case. 6. That this honourable court be pleased to grant such other and/or further orders as it deems fit and just to grant. 7. That the costs of incidental to this application be provided for. 2. The application is premised on the grounds inter alia that the proposed 3rd defendant/applicant is the registered proprietor of LR. No. 330/560 the suit property and the subject matter in these proceedings. The application is further supported by the afidavit of the proposed 3rd defendant/applicant sworn on even date. He deposed that he is the lawfully registered owner of the suit property, and that the same was initially owned by the late Prof. Thomas Risley Odhiambo who sold it to the 1st defendant/ respondent on 10th September, 2001 for Kshs.12,000,000. 3. The proposed 3rd defendant/applicant deposed that the 1st defendant/respondent mortgaged the property to Dubai Bank in October 2001, which after reconveyance, sold to him the suit property on 2nd August 2004, for a consideration of Kshs.12,000,000. He deposed that the plaintifi/respondent sought to revoke and cancel his title yet deliberately neglected to join him as a party to the suit despite being fully aware of his ownership since 2008. He further deposed that the plaintifi/respondent intentionally concealed this fact from the court, and that any ultimate decree cannot be properly enforced without his presence making him a necessary and proper party. 4. The proposed 3rd defendant/applicant deposed that there was previous litigation between the parties over the exact same property, where in 2004/2005 (HCCC No. 616), he sued the plaintifi/ respondent’s former administrator for vacant possession of the property. The administrator filed a counterclaim to nullify his title but subsequently died in 2006 without a substitution having been made, thus the counterclaim abated. He went on to depose that since the suit abated, the plaintifi/ respondent was legally barred from instituting a fresh suit on the same cause of action. 5. The proposed 3rd defendant/applicant pointed out that the plaintifi/respondent has acknowledged his ownership in other active and past suits, including multiple succession causes and cases from 2019 and 2021. 6. In opposition thereto, the plaintifi/respondent filed grounds of opposition dated 5th January, 2026 challenging the instant application on the following grounds:1. This suit was filed in the year 2009, and if indeed the applicant was, and remains, the lawful proprietor of the suit property as alleged, he either knew or ought to have known of the existence of these proceedings with the exercise of reasonable diligence. The applicant has nonetheless taken no steps for over sixteen (16) years to seek joinder and has only surfaced at the closing stage, when the matter is scheduled for judgment. This application is a clear afterthought, full of malice, brought in bad faith and is intended solely to delay the final and just determination of this long-standing suit. 2. In paragraph 9 of the applicant’s supporting afidavit, the applicant has failed to demonstrate or place before this honourable court any credible evidence establishing that he is the lawful proprietor of the suit property. No primary lawful conveyancing transactional documents have been exhibited in support of the alleged ownership, including but not limited to a duly executed sale agreement, duly executed transfer instruments, or completion documents. In https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4163/eng@2026-07-06 2

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the absence of such material evidence, the applicant's claim to lawful ownership remains unsubstantiated and cannot form a basis for joinder or the far-reaching reliefs sought. 3. Although the applicant alleges that he is the lawful owner of the suit property, he has failed to tender any credible evidence in support of that averment. In the absence of such evidence, the applicant has not demonstrated any legally recognizable or protectable interest in the suit property and has therefore failed to establish a legal stake in the matter capable of warranting his joinder as a party to these proceedings. 4. In paragraph 10 of the applicant's supporting afidavit, the letter dated 13th November, 2008 from the Ministry of Lands, as relied upon by the applicant, does not constitute proof of lawful ownership of the suit property. On the contrary, the said letter merely recites registry entries as appearing on record and expressly indicates that the family of the late Thomas Risley Odhiambo, through the daughter who is the plaintifi herein, had disputed the transfer to the 1st defendant and all subsequent entries, prompting the registrar of titles to commence investigations under the relevant land laws. The said letter does not validate or confirm the legality of any conveyance, nor does it confer proprietary rights, but instead summons the applicant and the 1st defendant, to produce original transactional documents for verification. In the absence of such primary documents, the said letter cannot be relied upon to establish lawful ownership of the suit property. 5. It is now trite law that mere entry of a name in the lands register does not, of itself, amount to conclusive proof of lawful ownership of land. An entry in the register cannot confer ownership in the absence of a valid and lawful transaction, Consequently, reliance on registry entries cannot establish lawful ownership of the suit property by the applicant. 6. The applicant has listed several suits allegedly involving the suit property herein, however, he has failed to disclose their outcomes and has selectively relied on them to support the present application, This conduct demonstrates a clear pattern of delay and abuse of the court process by a litigious party on his part, these suits include:a. HCCC No. 616 of 2004, seeking vacant possession of the suit property and the nullification of the plaintifis interest; the applicant's representative/agent, Maurice Mbengele Kinatu, in a separate afidavit sworn on 26th July 2019, stated, that HCCC No. 616 of 2004 abated upon the death of the defendant and was subsequently dismissed for want of prosecution. The said suit was instituted by the applicant himself, its abatement and eventual dismissal were a direct consequence of his own inaction. The abatement and dismissal of the applicant’s suit did not result in any determination on the merits and cannot operate to bar the plaintifi from pursuing the present suit as alleged by the applicant in paragraph 16 of his supporting afidavit. The applicant cannot now rely on proceedings that he failed to prosecute to advance the present application or to justify his belated attempt to be enjoined in this suit. His conduct demonstrates a clear pattern of indolence and tactical delay, which disentitles him to the discretionary reliefs sought; b. CMCC No. 4281 of 2019, seeking restraining orders against the plaintifi to the suit property; and c. ELC Mise. Civil Application No. E207 of 2021, filed by the plaintifi seeking stay of proceedings in CMCC No. 4281 of 2019 and an order to transfer the said suit from https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4163/eng@2026-07-06 3

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the Chief Magistrates Courts to Environment and Land Court in order to consolidate the same with ELC No. 368 of 2009. d. Succession Cause No. 2880 of 2008, which was an application by the plaintifi for a special limited grant for purposes of instituting suit and preserving the suit property following the outcome of a lands registry search; and e. Succession Cause No. 1264 of 2011, being an application by the plaintifi for full letters of administration for the estate of the late Thomas Risley Odhiambo. 7. In paragraphs 21, 22, and 23 of his supporting afidavit, the applicant alleges that the plaintifi failed and/or neglected to join him as a party to these proceedings and failed to disclose the existence of previous and related proceedings between the parties on the same subject matter. This allegation is untrue. In ELC Misc. Civil Application No. E207 of 2021, the plaintifi expressly sought, inter alia, orders for stay of proceedings in CMCC No. 4281 of 2019 and for the transfer of the said suit from the Chief Magistrates’ Court to the Environment and Land Court for consolidation with this suit, ELC No. 368 of 2009. In opposing that application, the applicant himself acknowledged the existence and pendency of ELC No. 368 of 2009 and stated in his grounds of opposition dated 18" July 2022, that the said suit was at an advanced stage and that consolidation would be prejudicial to him unless directions for a rehearing were issued. The applicant cannot now turn around and allege non-disclosure or non-joinder, having previously relied on the same proceedings to oppose consolidation. 8. Arising from the applicant’s own pleadings and afidavits filed in the above suits, it is evident that he has been aware of the existence and pendency of this suit for a considerable period of time. Despite such knowledge, the applicant never made any application for joinder or took any steps to be enjoined in these proceedings until now, at a very late stage. His failure to act timeously can only be construed as deliberate and disentitles him to the discretionary reliefs sought herein. 9. In paragraphs 18 and 19 of the supporting afidavit, the applicant alleges that the plaintifi acknowledged his proprietary rights over the suit property through afidavits filed in Succession Cause No. 2880 of 2008. This assertion is incorrect as the afidavit relied upon merely states that the family of the late Thomas Risley Odhiambo instructed their advocates to obtain a grant of letters of administration in respect of their late father's estate and that, upon conducting a search at the lands registry, the advocates were informed that land reference number 330/560, the suit property herein, was no longer registered in the deceased’s name but had purportedly been transferred to the 1st defendant in the year 2001, with subsequent unregistered entries allegedly made thereafter. The said afidavit simply records information obtained from a registry search and does not amount to an admission, acknowledgment or concession as to the legality or validity of the said transfers or of the applicant’s alleged proprietary rights. 10. Succession Cause No. 2880 of 2008 was an application for a special limited grant issued solely for purposes of instituting suit and taking protective steps to preserve the suit property following the outcome of the lands registry search. Owing to the disputed status of land reference number 330/56 and the existence of litigation arising therefrom, the suit property could not and did not form part of the schedule of free property in the subsequent application for full letters of administration in Succession Cause No. 1264 of 2011. The omission of the suit property from the said succession cause did not amount to an admission that the property did not belong to the deceased, but was necessitated by the contested nature of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4163/eng@2026-07-06 4

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title and the pending litigation. The omission of the suit property from Succession Cause No. 1264 of 2011 was therefore deliberate, lawful, and consistent with succession practice where ownership is contested. Consequently, the allegation made by the applicant at paragraph 18 of the supporting afidavit is false and misleading. 11. The applicant has not met the legal threshold for the grant of an order of stay of proceedings or delivery of judgment, having failed to demonstrate any exceptional or compelling circumstances to justify halting a matter that has been fully heard and is ripe for determination as it is only awaiting delivery of the honourable court’s judgement. 12. The applicant has not established any lawful or legally protectable interest in the suit property, has failed to demonstrate how or on what basis he is the lawful proprietor thereof, and has not satisfied the threshold for joinder as a necessary or proper party to the suit. Therefore, granting a stay at this advanced stage would occasion grave prejudice to the plaintifi, unjustly delay to the conclusion of a matter pending since 2009, and undermine the principle of finality in litigation. 13. In view of the foregoing, the applicant’s notice of motion dated 27th November, 2025 lacks merit, brought after inordinate and unexplained delay, and fails to meet the legal threshold for either joinder or stay of proceedings. Consequently, the application is an abuse of the court process and is intended solely to delay the final determination of this long-standing suit. The plaintifi therefore prays that the application be dismissed in its entirety with costs. 7. The application was canvassed through written submissions. The proposed 3rd defendant/applicant filed her written submissions dated 3rd March, 2026 while the plaintifi/respondent filed his submissions dated 30th March, 2026. I have considered the application, the grounds of opposition thereof and the written submissions filed by the parties. The issue for determination is whether the proposed 3rd defendant/applicant ought to be joined in this suit. 8. Order 1 rule 10(2) of the Civil Procedure Rules 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 to the court to be just, order that the name of any party improperly joined, whether as plaintifi or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintifi or defendant, or whose presence before the court may be necessary in order to enable the court efiectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 9. 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 enjoining 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 fiowing from that defendant to the plaintifi. 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 efiectively and completely to adjudicate upon and settle all questions involved in the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4163/eng@2026-07-06 5

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10. In determining whether the proposed 3rd defendant/applicant can be joined in this suit, he ought to demonstrate that his presence is necessary to efiectually and completely adjudicate upon and settle all questions involved in the suit, but his absence would not result in the dismissal of the suit and that he must have an identifiable stake or legal rights or duties in the suit. 11. The proposed 3rd defendant/applicant contended that he is a necessary party in this suit by virtue of being the registered owner of the suit property. In support thereof, he annexed two copies of oficial searches dated sometime in 2019 and 2018. On the other hand, the plaintifi/respondent vehemently challenged the said joinder for various reasons including the suit previously filed by the proposed 3rd defendant/applicant in HCCC No. 616 of 2004. 12. My attention has been drawn to ELC Misc Appl. No. E207 of 2021 which leads me to the conclusion that the proposed 3rd defendant/applicant has been aware of these proceedings all this time yet chooses to bring this application 16 years later. Secondly, I am concerned that in an application filed in 2025, the proposed 3rd defendant/applicant would choose to rely on a copy of oficial search dated 2019 and 2018 as proof of ownership. Indeed, from the year 2019 to date, a lot can happen including any interests on deposition of land. I am not persuaded that a copy of oficial search dated 2019 can be relied on in this application. 13. In my view, the application has not been made in good faith, and the proposed 3rd defendant/applicant is intent to delay this matter further. I say so for the reason that all along he has been aware of these proceedings, owing to the existence of other suits which he is a party. 14. I find the notice of motion dated 27th November, 2025 an abuse of the court process, the same is hereby dismissed with costs to the plaintifi/respondent. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 6TH DAY OF JULY, 2026. HON. MBOGO C.G. JUDGE 06/07/2026. In the presence of: Ms. Benson Agunga - Court assistant Ms. Omuoha for the Plaintifi/Respondent Mr. Koyyoko for the 1st Defendant/Respondent No appearance for the proposed 3rd Defendant/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4163/eng@2026-07-06 6

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