Mokaya & another v Omwenga & 2 others

4. That upon granting prayer 2 above, honourable court be pleased to add into these proceedings the names of Ammon Omwenga and Abel Omwenga as interested parties and be allowed to participate in the instant proceedings. 5. That upon grant prayer 3 above, this honourable court be pleased to le counter-claim by the Defendant/Respondent herein and be allowed to cross-examine the defendant's witnesses. 6. That the costs of this application be provided for. 2. The application is based on the grounds listed on its face and is supported by an adavit sworn by Ammon Omwenga. He deposed that he was a brother to the Defendant and that his late mother purchased the suit property from the Plaintis around the year 2004. That his mother fell sick and died in the year 2005 and that his relatives built for her a house on the suit property to enable her burial according to Gusii customs. 3. He further deposed that recently, the Defendant had threatened to demolish the house and had even demolished a pit latrine which had been built alongside the house. That it was not known how the Defendant became the registered owner of the suit property and that the Proposed Interested Parties would be seeking cancellation of his title. He further stated that the Proposed Interested Parties have an interest in the case and that they would like to cross examine the Defendant and his witnesses. 4. The Defendant opposed the application through a replying adavit in which he deposed that although the Proposed Interested Parties were his step brothers, they had no right over land parcel number Central Kitutu/Bogetaorio/2838 in respect of which he was registered proprietor, having acquired it lawfully and for valuable consideration. He also stated that parcel number Central Kitutu/ Bogetaorio/2537 ceased to exist in the year 2013 upon its subdivision into parcels number 2837, 2838, 2839, 2840, 2841 and 2842. 5. The Defendant denied unlawfully demolishing any house belonging to the Proposed Interested Parties or even threatening to unlawfully evict them and added that their claim was purely speculative and was intended to derail and complicate the hearing of the substantive dispute between the Plaintis and him. 6. The Applicants led a supplementary adavit sworn by Ammon Omwenga. He deposed that the Defendant had not demonstrated how he became the registered proprietor of parcel number Central Kitutu/Bogetaorio/2838. He added that among the reasons why they wanted to join the suit was to seek an explanation from the Defendant how the land agreement changed from their mother to him without their knowledge when the seller denied that he ever sold or transferred the property to the Defendant. He also stated that the Defendant would not be prejudiced by their joinder as Interested Parties. 7. The application was canvassed through written submissions. The Applicants led submissions dated 2nd June 2026 while the Defendant led submissions dated 4th June 2026. The Plaintis neither led a response nor submissions. 8. I have carefully considered the application, the adavits, and the submissions. The issues that arise for determination are whether the Applicants should be joined to this matter as interested parties and if so, whether an injunction should issue as sought. 9. Order 1 Rule 10 (2) of the Civil Procedure Rules provides thus: 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 plainti or defendant, be struck out, and that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5552/eng@2026-09-22 2

page 2 of 4

the name of any person who ought to have been joined, whether as plainti or defendant, or whose presence before the court may be necessary in order to enable the court eectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 10. The principles that guide the Court while considering an application for joinder as an Interested Party are straightforward and were discussed by the Supreme Court in Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others [2014] eKLR thus: [22] In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held: “An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be aected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause…” [23] Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that: “ [24] (i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings; (ii) joinder to provide protection for the rights of a party who would otherwise be adversely aected in law; (iii) joinder to prevent a likely course of proliferated litigation.” We ask ourselves the following questions: (a) what is the intended interested party’s stake and relevance in the proceedings? and (b) will the intended interested party suer any prejudice if denied joinder? 11. There is no dispute that the Applicants and the Defendants are brothers. They are not strangers to each other. The properties in dispute are also well known to them. 12. This case was led in the year 2022. As noted earlier, both the Plaintis’ case and Defence case have been heard and closed. Defence case was closed on 12th May 2026, the very day when the Applicants led the present application. There is no suggestion that they were not all along aware of the case. They have not stated in their application at what point they became aware of the proceedings. All that leads me to conclude that they were all along aware of the case. 13. Pursuant to prayer number 5 of the application, the Applicants intend, if allowed to join, to mount a claim by the Defendant in which they will be seeking cancellation of his title. They also intend to cross-examine the Defendant's witnesses. All that would require the re-opening of the closed defence case. It may even have a knock on eect on the Plaintis’ case. 14. The Applicants have oered no explanation as to why they did not move the Court earlier. Allowing them to join at this stage will be disruptive to the proceedings. Any case that they may have against https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5552/eng@2026-09-22 3

page 3 of 4

the Defendant regarding validity of his title any rights that they may claim over the property and developments thereon can be advanced in separate proceedings. 15. I nd no merit in Chamber Summons dated 11th May 2026. I dismiss it with costs to the Defendant. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 22ND DAY OF SEPTEMBER 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Orangi for the Plaintis Mr Ochoki for the Defendant Mr Mokaya holding brief for Ms Nyaata for the Proposed Interested Parties Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5552/eng@2026-09-22 4

page 4 of 4