Safa Residency Ltd v Muya & 4 others

RULING Introduction 1. This Ruling is delivered in respect of the 2nd Defendant’s Notice of Motion dated 14th July, 2026. The Application is brought pursuant to Order 1 Rule 10(2) and (4) and Order 2 Rule 15 of the Civil Procedure Rules, Section 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the Law. The 2nd Defendant seeks the following orders: a) Spent. b) THAT this Honourable Court be pleased to order that WATHOME KITAVI MUTHEO, THE REGISTRAR OF REGISTRAR OF LANDS & L.G. KIMANI, TITLES be joined to these proceedings as Defendants. ELCLC E025/2026 RULING 2

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c) THAT upon joinder, the proposed Defendants be granted leave to file statements of defence to the Plaintiff’s suit. d) THAT the costs of this Application be provided for. 2. The Application is supported by the Affidavit of Hussein Kusow, Advocate for the 2nd Defendant, sworn on 14th July, 2026. 3. The 2nd Respondent’s case, in substance, is threefold. First, Wathome Kitavi Mutheo is said to be the person from whom the Plaintiff purchased the suit property and who, in turn, claims to have acquired it from the 1 st Defendant. Second, the Registrar of Lands is said to be the custodian of the land records and therefore the office best placed to clarify the competing claims to title. Third, L.G. Kimani, Registrar of Titles, is alleged to have registered the Plaintiff’s interest on 1st April, 2024 but subsequently disowned the ELCLC E025/2026 RULING 3

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signature and stamp appearing on the relevant entry when summoned by the County Criminal Investigations Officer, Machakos. 4. The 2nd Defendant contends that the presence of the proposed parties is necessary to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. It further contends that their joinder will not prejudice the Plaintiff The Plaintiff’s response 5. The Plaintiff opposes the Application by way of the Replying Affidavit sworn by its Director, Muhidin Mohamed Elmi, on 23rd July, 2026. 6. The first objection concerns the competence of the Supporting Affidavit. The Plaintiff contends that the affidavit was sworn by the 2nd Defendant’s advocate, who allegedly has no locus or authority to depose to contentious matters of fact on behalf of the 2nd Defendant. It is further contended ELCLC E025/2026 RULING 4

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that the advocate had not filed a Notice of Appointment, Memorandum of Appearance or Defence. 7. The Plaintiff’s second objection is that it has neither pleaded a claim against nor sought any relief from any of the proposed Defendants. Its case, it submits, is directed solely against the existing Defendants. 8. Third, the Plaintiff contends that the Applicant has not demonstrated that any of the proposed Defendants has a proprietary or other legal interest in the suit property which will be affected by the outcome of the proceedings. 9. Fourth, it is argued that the Land Registrar is not a necessary party merely because that office is the custodian of land records. The Plaintiff characterizes the proposed joinder as an attempt to procure evidence through joinder. ELCLC E025/2026 RULING 5

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10. Fifth, the Plaintiff challenges the allegation that L.G. Kimani disowned the signature and stamp appearing on the relevant entry, describing it as hearsay unsupported by evidence. 11. Sixth, the Plaintiff submits that a Land Registrar cannot be held personally liable for lawful acts undertaken in good faith in the discharge of statutory duties. 12. Finally, the Plaintiff contends that the application is an afterthought and a delaying tactic. It points out that the 2 nd Defendant was served with summons on 4 th March, 2026, but did not file or serve a defense despite directions given by the Court on 23rd March, 2026. It is argued that the proposed joinder would unnecessarily complicate and delay the hearing of the suit. Submissions 13. On 16th July, 2026, the Court directed the parties to canvass the application by way of written submissions. Neither party ELCLC E025/2026 RULING 6

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complied with those directions. The Court has therefore determined the application on the basis of the application, the affidavits on record, the pleadings and the applicable law. Issue for Determination 14. Having considered the application, the response thereto and the record, I consider that the following issues arise for determination: a) Whether reason the of Application the affidavit is incompetent sworn by the by 2nd Defendant’s advocate. b) Whether the proposed parties ought to be joined to these proceedings as Defendants; and c) Who will bear the Costs of this application? ELCLC E025/2026 RULING 7

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Analysis and Determination Whether the Application is incompetent by reason of the affidavit sworn by the 2nd Defendant’s advocate 15. The Plaintiff’s first objection is directed at the competence of the Supporting Affidavit. It is contended that the advocate who swore the affidavit had no personal knowledge of the matters deposed to and had not otherwise placed himself on record for the 2nd Defendant. 16. As to the contention that the advocate was not on record for the 2nd Defendant, the record does not support the objection. The record shows that M/s Kusow & Company Advocates filed a Notice of Appointment of Advocates on behalf of the 2nd Defendant on 20th February, 2026. The firm was, therefore, duly on record for the 2nd Defendant when the Application was filed. That limb of the objection consequently fails. ELCLC E025/2026 RULING 8

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17. That said, the more substantial question is whether counsel was entitled to depose to the matters contained in the Supporting Affidavit. 18. Order 19 Rule 3(1) of the Civil Procedure Rules provides that affidavits shall be confined to facts which the deponent is able of his own knowledge to prove, subject to the proviso permitting statements of information and belief in interlocutory proceedings or with leave of the Court, provided the sources and grounds thereof are disclosed. 19. The relevant provision is in the following terms: “3. Matters to which affidavits shall be confined [Order 19, rule 3] (1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: Provided that in interlocutory proceedings, or by leave of the court, an affidavit may ELCLC E025/2026 RULING 9

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contain statements of information and belief showing the sources and grounds thereof. (2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.” 20. The underlying principle is that an advocate ought not to swear an affidavit on behalf of a client in relation to contentious matters of fact of which the advocate has no personal knowledge. The rule is intended to avoid the awkward situation in which counsel, having assumed the role of an advocate, is subsequently required to step down from that privileged position and submit himself to crossexamination on matters in dispute. ELCLC E025/2026 RULING 10

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21. The Court of Appeal restated this position in Ibrahim & another v Zumzum Investment Limited & another [2024] KECA 862, observing that: “The general rule is that advocates should not swear affidavits in contested matters. Where the client is available to swear to the disputed facts, the depositions in the affidavit of the advocate, may amount to hearsay unless their sources and grounds for belief are disclosed.” 22. That principle, however, does not render every affidavit sworn by Transporters an advocate Services incompetent. Ltd v In Hakika Albert Chulah Wamimitaire [2016] KECA 255 (KLR), citing its decision in Salama Beach Ltd v Mario Rossi, Ca. No. 10 Of 2015; the Court of Appeal stated as follows: “As regards the appellant’s objection regarding the affidavit supporting the application, it is clear that Mr. Munyithya has deponed only to matters within his personal knowledge as counsel acting ELCLC E025/2026 RULING 11

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in this matter both in the High Court and in this Court. Ordinarily counsel is obliged to refrain from swearing affidavits on contentious issues, particularly where he may have to be subjected to cross examination (See Pattni v Ali & 2 Others, CA. No. 354 of 2004 (UR 183/04). Rule 9 of the Advocates (Practice) Rules however permits an advocate to swear an affidavit on formal or noncontentious matters.” 23. The question, therefore, is not who swore the affidavit, but the nature of the matters to which counsel deposed. In paragraphs 3, 4 and 5 of the Supporting Affidavit of the 2 nd Defendant, counsel deposes to the alleged chain of title, the custodial role of the Registrar of Lands and the alleged disowning by L.G. Kimani of the signature and stamp appearing on the entry dated 1st April, 2024. 24. Suffice it to say that the matters concerning the pleaded chain of title are ascertainable from the pleadings and ELCLC E025/2026 RULING 12

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documents forming part of the record. To that extent, they are matters upon which counsel may properly depose. Similarly, the statutory role of the Registrar of Lands is a matter of law and does not become contentious merely because counsel states it in an affidavit. 25. As to the allegation that L.G. Kimani was summoned by the County Criminal Investigations Officer, Machakos, and thereupon disowned the signature and stamp appearing on the relevant entry, I find no evidential basis upon which the Court can act. The allegation is specific and contested, yet no affidavit, statement, letter, or report from L.G. Kimani or the investigating officer confirms that the alleged summons or disavowal took place. Counsel has likewise not disclosed the source of the information or the basis upon which the allegation is made. In the circumstances, I cannot treat the allegation as a fact and place no reliance upon it. 26. The finding in the preceding paragraph does not, however, render the Supporting Affidavit or the Application incompetent. The objection goes only to the particular ELCLC E025/2026 RULING 13

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factual assertion which counsel was not competent to depose to. The Court is entitled to disregard that assertion and consider the Application based on the admissible and relevant evidence properly placed before it. 27. Accordingly, I will disregard those portions of the Supporting Affidavit in respect of which counsel has deposed to matters not shown to be within his personal knowledge and for which no source of information or grounds have been disclosed, including the averment at paragraph 5. This does not preclude the Court from considering the Application on its merits. I will therefore determine it based on the grounds set out in the Notice of Motion and the admissible material properly placed before the Court. Whether the proposed parties ought to be joined to these proceedings as Defendants 28. Under the provisions of Order 1 Rule 3 of the Civil Procedure Rules, a person may be joined in a suit as a Defendant against whom any right to relief arising out of an ELCLC E025/2026 RULING 14

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act or transaction is alleged to exist. The Rule provides as follows: “All persons may be joined as Defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.” 29. Order 1 Rule 10(2) on the other hand, confers a wider discretion on the Court. It permits the Court, at any stage of the proceedings and on such terms as may appear, to strike out a party improperly joined and to add a person who ought to have been joined or whose presence before the Court is necessary to enable it effectually and completely to adjudicate upon and settle all questions involved in the suit. 30. Order 1 Rule 10(2) provides: ELCLC E025/2026 RULING 15

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“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.” 31. The power of the Court to order the joinder of a party is discretionary. That discretion must, however, be exercised judiciously and in accordance with the principles governing joinder under Order 1 Rule 10(2) of the Civil Procedure Rules. The Court of Appeal explained the nature and purpose of that discretion in Civicon Limited v Kivuwatt Limited & 2 others [2015] KECA 588 (KLR) as follows: ELCLC E025/2026 RULING 16

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“Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time inconvenience without and to any avoid protraction, multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the ELCLC E025/2026 RULING 17

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execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.” 32. In Pravin Bowry v John Ward & another [2015] KECA 215 (KLR), the Court of Appeal further distinguished a person against whom a cause of action exists and a person whose presence is nevertheless necessary for the effectual and complete determination of the dispute. In the latter case, it must be demonstrated either that the orders sought would legally affect that person’s interests or that an existing defendant cannot adequately present the defence it wishes to advance without that person being joined. 33. In Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] KEHC 1192 (KLR), the Court distilled the ELCLC E025/2026 RULING 18

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guiding principles for determining whether a party ought to be joined as follows: a) He must be a necessary party. b) He must be a proper party. c) In the case of the defendant there must be a relief flowing from that defendant to the plaintiff. d) The ultimate order or decree cannot be enforced without his presence in the matter. e) His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit. 34. To my mind, the principles may therefore be reduced to the following considerations: ELCLC E025/2026 RULING 19

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a) The Court must ask whether the proposed party has a legal interest that may be affected by the determination. b) Whether a substantive relief flows from or against that party. c) Whether the party’s presence is necessary for complete adjudication. d) Whether the decree can effectively be enforced without the party, and e) Whether joinder will avoid rather than generate unnecessary or proliferated litigation. 35. Having considered the foregoing provisions and authorities, I now turn to the question whether the persons sought to be joined are necessary parties to the determination of the suit. In doing so, the Court must consider whether a relief arises ELCLC E025/2026 RULING 20

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from, or lies against, the proposed party, and whether the presence of that party is necessary to enable the Court to effectually and completely determine the questions in controversy. Wathome Kitavi Mutheo 36. The 2nd Defendant seeks to join Wathome Kitavi Mutheo on the basis that he is the person from whom the Plaintiff purports to have purchased the suit property, and who in turn claims to have bought it from the 1st Defendant. 37. There is therefore a factual connection between Wathome and the Plaintiff’s asserted title. The question, however, is whether that connection makes Wathome a necessary or proper Defendant within the meaning of Order 1 Rule 10(2) of the Civil Procedure Rules. 38. The Plaintiff does not seek any relief against Wathome. Its claim concerns the validity of Grant No. I.R. 44653, the entries relating to that grant and the alleged interference ELCLC E025/2026 RULING 21

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with its proprietary rights. Nothing in the material before me demonstrates that the Plaintiff seeks to impeach the sale by Wathome to the Plaintiff or seeks any order against Wathome arising from that transaction. 39. Equally important, the 2nd Defendant has not demonstrated that it cannot adequately present its defence without Wathome being made a party. The issues which the 2 nd Defendant seeks to raise concerning its own title and competing proprietary claim can be determined without Wathome being made a party to the suit. 40. More importantly, the material before the Court does not demonstrate that Wathome retains any proprietary or other legally cognizable interest in the suit property following the alleged sale and registration in favor of the Plaintiff. On the material before the Court, his connection with the property is limited to the transaction through which the Plaintiff claims to have acquired its interest. In that regard, his evidence ELCLC E025/2026 RULING 22

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may be relevant to the history of the transaction, but that does not make him a necessary party to the proceedings. 41. A similar position was adopted in Greenbelt Warehouses Limited v Munyaka Holding Ltd & 2 others; Mohamed (Intended Interested Party) [2025] KEELC 7043 (KLR) where the Court held: “In the matter before the Court, the Intended Interested Party asserts that he sold the suit property to the Plaintiff. That fact is supported by an annexed Sale Agreement dated 12th December 2014 meaning that he sold the property more than six (6) years before the dispute herein would arise. As it were, upon sale of land to another party, the vendor relinquishes any interests and/or rights pertaining to that property and other than being a witness to the fact of the sale, I did not find any reason that would qualify the Intended Interested Party as a necessary party in these proceedings.” ELCLC E025/2026 RULING 23

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42. The circumstances in the present case are substantially similar. No evidence has been placed before the Court demonstrating that Wathome retains a proprietary interest in the suit property or that any order to be made in these proceedings will bind him or otherwise affect a subsisting legal interest of his. Neither has it been demonstrated that his presence is necessary for the Court to effectually and completely determine the questions arising in the suit. 43. In the circumstances, Wathome may be a material witness to the transaction through which the Plaintiff asserts its title, but the evidence before the Court does not establish that he is a necessary or proper Defendant. The Court therefore declines the prayer for his joinder. The Registrar of Lands 44. The Applicant seeks to join the Registrar of Lands on the basis that the Registrar is the custodian of all land records and is the only office which can ascertain which title is genuine. ELCLC E025/2026 RULING 24

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45. The dispute before the Court concerns competing claims to the same parcel of land. The Plaintiff traces its title to a registration allegedly effected on 1st April, 2024, while the Defendants rely upon Grant No. I.R. 44653. The authenticity of the respective title documents and the regularity of the registration process are therefore central to the controversy. 46. The Registrar has a statutory role in relation to the land registration records relevant to this dispute. As the custodian of the register and the records from which the entries and transactions in issue are derived, the Registrar is able to account for the entries appearing in the register and the processes through which they came to be made. His presence will therefore assist the Court in effectually and completely determining the questions arising from the competing entries and transactions placed before it. 47. The question that follows is whether the Registrar’s role in relation to those records makes his presence necessary for ELCLC E025/2026 RULING 25

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the effectual and complete determination of the questions arising in the suit. In my view, it does. The competing entries and transactions forming part of the dispute are matters recorded in the register and the records maintained by the Registrar. Their provenance and the processes through which they came to be made are therefore matters in respect of which the Registrar has a direct statutory responsibility. 48. Accordingly, the Registrar’s presence is necessary for the effectual and complete determination of the questions arising in the suit. His joinder will enable the Court to determine those questions in the presence of the officer responsible for the custody and maintenance of the relevant register and records and, where necessary, to make an effective order concerning an entry in the register. The Registrar is therefore properly joined as a party to these proceedings. ELCLC E025/2026 RULING 26

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49. In Seii v Githaiga & 3 others [2023] KEELC 20298 (KLR), the Environment and Land Court considered the Land Registrar a necessary party in circumstances involving disputed titles and records, particularly because the Registrar was the officer responsible for the relevant land records and would be required to implement any consequential changes. 50. Likewise, in Mwihaki v Kigui & 2 others [2022] KEELC 2771 (KLR), the Court held that while the Chief Land Registrar may not have an identifiable stake in a land ownership dispute, their presence would be necessary and expedient in the matter, serving as a friend of the Court to help dissect various ownership documents and clarify which disputed documents are legitimate. The Court stated that: “In the premises, even though I have found and held that the Chief Land Registrar does not have any identifiable stake and/or claim in the subject dispute, but having hitherto been joined, before ELCLC E025/2026 RULING 27

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same was removed from the proceedings at the instance of the 1st and 2nd Defendants, it is my humble consideration that his presence, would be necessary and expedient in the matter.” 51. Taken together, the foregoing decisions illustrate that the absence of a proprietary interest in the subject property does not preclude the joinder of the Land Registrar. The decisive consideration is whether the Registrar’s presence is necessary to enable the Court to effectually and completely determine the questions in dispute, having regard to the nature of the controversy, the records in issue and any consequential orders that may arise from the determination. 52. In the present case, the dispute concerns competing entries and registrations relating to the suit property, including the authenticity and regularity of the registration said to have been effected on 1st April 2024. Those matters concern the register and the records the Registrar maintains in discharging his statutory functions. The Registrar is therefore ELCLC E025/2026 RULING 28

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directly connected to the subject matter of the dispute and is the officer responsible for the records from which the questions concerning the competing registrations must be determined. 53. In the circumstances, I am satisfied that the Registrar’s presence is necessary for the effectual and complete determination of the questions arising in the suit. The Court may be called upon to make orders concerning the entries in the register, and the presence of the officer responsible for maintaining the register is necessary to ensure that any such orders are capable of taking effect. 54. I have also considered the delay in seeking the joinder. No prejudice has been demonstrated to have been occasioned to the Defendants by the delay which cannot be addressed in the further conduct of the proceedings. I therefore do not consider the delay sufficient to outweigh the need for the Registrar to be before the Court. ELCLC E025/2026 RULING 29

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55. Accordingly, I find that the Registrar of Lands, Machakos, is a necessary party to these proceedings. His joinder is warranted by the nature of the dispute and the relief that may arise from the Court’s determination of the competing registrations. L.G. Kimani, Registrar of Titles 56. The Applicant also seeks to join L.G. Kimani, Registrar of Titles, as a Defendant. The application is premised on the allegation that he disowned the signature and stamp appearing on the entry by which the Plaintiff’s interest was registered. 57. The Plaintiff opposes the proposed joinder. It contends that the allegation concerning the signature and stamp is hearsay and unsupported by the evidence before the Court. It further submits that no relief has been sought against L.G. Kimani personally and that the acts attributed to him were, in any event, acts undertaken in the discharge of his statutory functions. ELCLC E025/2026 RULING 30

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58. I have already found that the allegation that L.G. Kimani disowned the signature and stamp is not supported by admissible evidence and cannot be relied upon. There is therefore no evidential basis before the Court upon which the proposed joinder can properly rest. 59. Quite apart from that consideration, the application does not demonstrate that L.G. Kimani has any personal proprietary or legal interest in the suit property that will be affected by the determination of the proceedings. Nor has it been shown that his personal presence is necessary for the Court to effectually and completely determine the questions arising in the suit. 60. The distinction between the office of the Registrar and the individual officer holding that office is important in this regard. The matters relied upon by the Applicant concern the maintenance of the land register and the making of entries therein, functions performed by the Registrar in an official ELCLC E025/2026 RULING 31

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capacity. The Applicant has not identified any personal claim against L.G. Kimani arising from those functions or any relief which the Court is called upon to grant against him personally. 61. Section 14(5) of the Land Registration Act, further provides: “The Registrar shall not be held personally liable for lawful acts discharged by the Registrar under this Act in good faith.” 62. The above provision protects the Registrar from personal liability for lawful acts undertaken in good faith in discharging statutory functions. The present application does not allege any personal cause of action against L.G. Kimani arising from the discharge of those functions. It also does not identify any relief the Court must grant against him personally. ELCLC E025/2026 RULING 32

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63. The fact that L.G. Kimani may have information concerning the disputed registration does not make his personal joinder necessary. The relevant registration entries and the processes through which they were made form part of the official records maintained in the exercise of the Registrar’s statutory functions. Where evidence concerning those matters is required, it may be obtained from the records and through the appropriate officer in his official capacity. 64. I am therefore not satisfied that L.G. Kimani is a necessary or proper party to these proceedings. His personal joinder is not necessary for the effectual and complete determination of the questions arising from the competing registrations, and no relief has been sought against him personally. 65. Accordingly, I decline to join L.G. Kimani, Registrar of Titles, as a Defendant. ELCLC E025/2026 RULING 33

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Conclusion 66. In the result, the application succeeds only to the extent that the Registrar of Lands, Machakos, is joined as a party for the effectual and complete determination of the questions arising from the competing registrations. The prayer to join Wathome Kitavi Mutheo and the prayer for the personal joinder of L.G. Kimani are declined. Orders 67. Accordingly, the 2nd Defendant’s Notice of Motion dated 14 th July, 2026 is determined as follows: a. The application to join Wathome Kitavi Mutheo as a Defendant is declined. b. The application to join L.G. Kimani, Registrar of Titles, as a Defendant is declined. c. The Land Registrar, Machakos, is hereby joined to these proceedings as the 3rd Defendant. ELCLC E025/2026 RULING 34

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d. The Plaintiff shall, within fourteen (14) days of the date of this Ruling, amend and serve the pleadings and all necessary documents to reflect the joinder ordered herein. e. The Land Registrar, Machakos, shall be at liberty to enter appearance and file a statement of defence within fourteen (14) days of service upon him. f. The costs of the Application shall abide the outcome of the suit. It is so ordered. Delivered and Dated at Machakos this 17th day of September, 2026. HON. J. N. KUYIONI ELCLC E025/2026 RULING 35

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JUDGE 17.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Ms. Aswani holding brief for Mr. Kusow for the 2 nd Defendant. Mr. Litoro for the Plaintiff. No appearance for the 1st Defendant ELCLC E025/2026 RULING 36

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