Fred Maoga Nyambarora v Peter Kipkurui Langat & Samwel Mokaya Bikundo, Maoga Nyambega & Nelson Keoye Arumba (Intended 2nd Defendants/Applicants)

b)Inviting the court to review and set aside its judgment delivered on 30/9/2021 together with all consequential orders therefrom and substituting therefor with an order that this suit starts de novo. c) To join the 2nd defendants in the suit to enable them to present their case and protect their legal stake in the suit property d)Costs of this application. 2. The application is based on the grounds on the face of it and further supported by the affidavit sworn by Samwel Mokaya on behalf of his co-applicants setting out the facts giving rise to the same. The applicants aver that the plaintiff/respondent is a member of a group whose objectives, among others, include buying and selling land. 3. The applicants equally contend that the plaintiff/respondent acquired the suit property by way of adverse possession through a judgment delivered on 30/9/2021 without the group’s knowledge, yet it had acquired two plots measuring 50 by 100 feet forming part of the suit property. RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 2

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4. According to the applicants, upon the subdivision of land parcel number L.R. No. Trans Zoia Kipitoi/49, the defendant/respondent and the applicants remained on the suit property, which was to be further subdivided between the defendant/respondent and themselves. 5. The applicants further aver that it was during the subdivision process that they discovered that the plaintiff/respondent had acquired title to the suit property. They term the acquisition irregular and unlawful, and further state that they are at the risk of eviction if they are not joined in the suit as the 2 nd defendants. 6. Additionally, the applicants contend that they were condemned unheard since the plaintiff/respondent has never occupied ¼ of an acre, yet he acquired the same through adverse possession. 7. Copies of the certificate of registration, decree, and an official search are attached and marked as SMB 1(a) &(b) - 3. 8. In response, the plaintiff/respondent filed a replying affidavit dated 8/6/2026 in which he depones that he owns the entire suit property as declared in the RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 3

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judgment of 30/9/2021. He, therefore, terms the application as incompetent and untenable. 9. According to the plaintiff/respondent, a party cannot seek joinder post-judgment when execution has already occurred. 10. The plaintiff/respondent confirms he is member number 87 in the group, which can sue him in a separate suit. He denied having any dealings with the group. 11. Similarly, the plaintiff/respondent maintains that the application is an abuse of the court process since a similar application for joinder was dismissed. The application is marked FMN1. 12. The applicants filed a supplementary affidavit sworn on 2/7/2026. They contend that the plaintiff/respondent is a member of the group and that they have been in occupation or possession of the suit parcel. The photographs were attached as SMB-4. 13. The applicants further aver that a judgment obtained through fraud does not extinguish their ownership rights. 14. Directions were taken that the application be argued by way of written submissions. The applicants seek RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 4

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to rely on their submissions dated 13/7/2026. They submit that a judgment may be reviewed or set aside if obtained in violation of a party's constitutional right to a fair hearing, or without notice to a party whose rights are likely to be affected. For this proposition, the applicants place reliance on Article 50 of the Constitution and further cite the cases of Sangram Singh -vs- Election Tribunal, Kotech, AIR 1995 SC 664, at 711 and Ridge -vs- Baldin [1964] AC (1963) 2 All ER 66. 15. Further, the applicants submit that despite being in occupation of the land for over 25 years, they were not joined to the suit, nor were they served with any pleadings or notices. The applicants relied on the ratio in Mwachala -vs- Msafiri & 3 others (Civil Appeal E024 of 2022) [2025] KECA 1124 (KLR) and Alton Homes Limited & Another -vs- Davis Nathan Chelogoi & 5 others (2020) KECA 326 (KLR). 16. On setting aside an ex-parte judgment, the applicants urged the court to be guided by Trans Africa Assurance Co Ltd -vs- Lincolin Mujuni [2014] UGCOMMC 215 and CMC Holdings Ltd - RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 5

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vs- James Mumo Nzioki (2004) eKLR, Nairobi Civil Appeal No.329 of 2001 17. On whether the applicants ought to be joined in the suit post-judgment, the applicants rely on Order 1, Rule 10(2) of the Civil Procedure Rules, Pravin Bowry -vs- John Ward & Another [2015] KECA 215(KLR) and Mary Beach Ltd -vs- Attorney General & 18 Others (2018) eKLR. They submit that there are exceptional circumstances where the court can join a party after judgment has been delivered. 18. Further, the applicants submit that despite execution of the decree, the same can be reviewed. 19. The applicants submit that a judgment may be reopened in exceptional cases, as held in AVH Legal LLP -vs- Raballa & 8 others (Civil Appeal (Application)117 of 2018), (unreported) delivered on 31st March, 2023. 20. On issuance of injunctive orders to preserve the subject matter, the applicants rely on Giella -vsCassman Brown & Co. Ltd (1973) E.A 358 to submit that they have met the conditions set therein. 21. The plaintiff/respondent equally filed written submissions dated 12/6/2026. He submits that the RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 6

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applicants are strangers to the proceedings and cannot seek review of the judgment. 22. Accordingly, the plaintiff/respondent submits that the applicants are not necessary parties and do not qualify to be defendants in the suit since they are not the registered owners of the suit property. 23. The plaintiff/respondent relied on Kenya Medical Laboratory Technicians & Technologists Board & 6 others -vs- Attorney General & 4 others [2017] eKLR, Joseph NJau Kingori -vs- Robert Maina Chege & 3 Others (2002)eKLR and J.M.K vs- M.W.M & Another [2015] eKLR. 24. I have carefully considered the application before me, the rival affidavits on record as well as counsel’s submissions for which I am grateful. 25. From the get-go, even though the applicants allege that they were condemned unheard and that the judgment should, therefore, be set aside, this is far from the truth. A cursory look at the judgment and the court records generally shows that the suit was defended through a statement of defence dated 18/4/2019. The record further shows that the defence led the evidence of one witness. It is, RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 7

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therefore, not factually correct to say that the judgment was ex parte. 26. The same record further shows that there was a previous application for joinder which was dismissed vide a ruling dated 16/7/2025. 27. To allow or decline an application for joinder of parties is a discretionary power of the court. Of course, being a discretionary power, such discretion must be exercised judiciously, regard and focus being had to the need to administer justice fairly. which is the primary function of the judiciary. 28. Joinder can be effectuated through an application or by court's own motion. The party seeking joinder must be a necessary party for the determination of the issue in controversy. (See Order 1 Rule 10(2) and Order 7 of the Civil Procedure Rules and Eastern Bakery -vs- Castelino [1958] EA 461). 29. In Mbogo -vs- Shah [1968] EA 93, the court held that the discretion to set aside a regular judgment can be exercised to avoid a mis-advertence, mistake, or for the ends of justice to be met, so long as the defendant has triable issues in his proposed defence. See also Patel -vs- EA Cargo Handling Services Ltd [1974] EA 75. RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 8

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30. The applicants urge the court to allow them a seat at the table of justice. However, the all-important question that the court must ask itself is whether the application is merited. In answering this question, regard must be had to the totality of the circumstances of this case, including the legal efficacy, if any, of such joinder at this stage. 31. This application has been filed almost five years after the judgment was delivered. The applicants have not explained the delay, which in all aspects is inordinate. Looking at all the circumstances of this case, I am unable to exercise my discretion in favour of the applicants. If, as I have understood the applicants to say, they have proprietary rights to the suit property, their recourse lies not in seeking to reopen a suit which was heard and determined and in which suit they were not parties, but rather in filing a separate suit against the plaintiff herein. It is a timehonoured maxim of equity that equity does not suffer a wrong to be without a remedy. The applicants will still have a chance to prosecute their rights if they move court appropriately. 32. The upshot is that I find the application to be lacking in merit. The corollary to this is that none of the RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 9

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orders sought by the applicants can issue in the circumstances. It is dismissed with costs. 33. It is so ordered. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 25th day of September, 2026. In the presence of: Court Assistant: Matui/Nancy Mr. Momanyi for the plaintiff Ms. Mukanda holding brief for Mr. Nakitare for the applicant HON. G.M. GITONGA JUDGE, ELC KITALE RULING: KITALE ECL NO.84 OF 2016 (OS) – D.O.D 25/09/2026 10

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