Francis Muzee Kirui & another v Christine Terah & 23 Others; Teddy Laban Kegode & another (Proposed Defendants); County Land Adjudication and Settlement Officer, Kakamega & another (Proposed Interested Parties)

(Suing as the Administrators Ad-Litem of the Estate of Salome Nyangasi-Deceased) AND COUNTY LAND ADJUDICATION AND SETTLEMENT OFFICER, PROPOSED INTERESTED PARTY KAKAMEGA……3RD COUNTY LAND REGISTRAR, PROPOSED INTERESTED PARTY KAKAMEGA………4TH RULING Introduction 1. Before court is a Notice of Motion dated 16th July 2025 filed by the 1st and 2nd applicants/proposed defendants, seeking the following orders; 1) Spent. 2) Spent. 3) The respondents, their servants and agents be restrained by temporary injunction from harassing the estate of Salome Nyangasi 2

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Terah, trespassing into, selling, transferring, alienating, disposing, sub-dividing and/or otherwise interfering with parcel described as L.P Kakamega/Sergoit/100 effecting, transferring and/or issuing title documents from the original title number L.P Kakamega/Sergoit/100 pending hearing and final determination of the main suit. 4) This Honourable court be pleased to enjoin the applicants herein, Teddy Laban Kegode and Martin Mukunza Terah, the administrators ad-litem of the estate of the late Salome Terah alias Salome Nyangasi Terah as defendants in these proceedings more particularly to defend the interest of the estate of the late Salome Nyangasi Terah in respect of land parcel no. L.P Kakamega/Sergoit/100 5) The court be pleased to enjoin the 3rd and 4th proposed interested parties for the purpose of producing the official land records relating to the suit property. 6) Upon granting of prayer 3 hereinabove, this honourable court be pleased to order that the plaintiffs amend their plaint as may be 3

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necessary and the amended copies be served upon the new defendants and any other relevant order and/directions for effective disposition of the suit. 7) The cost of this application be in the cause. 2. The application was anchored on the supporting affidavit sworn by Teddy Laban Kegode, the 1st applicant, on 16th July 2025. The applicants’ case was that the 2 nd applicant, Martin Mukunza Terah, was the administrator ad litem of the estate of Salome Nyangasi Terah (deceased), while the 1st applicant was a beneficiary of the said estate. They stated that the deceased had purchased a portion of L.P. Kakamega/Sergoit/100, from the original proprietor one Joseph Kipkurui Chuma, the respondents’ father, which property was subsequently included in the succession proceedings relating to the estate of Joseph Kipkirui Chuma (deceased). 3. Further, that the respondents had obtained Letters of Administration in Kakamega High Court Succession Cause No. 114 of 2014 concerning the estate of Joseph 4

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Kipkirui Chuma without disclosing to the Succession Court that the deceased had previously sold a portion of L.P. Kakamega/Sergoit/100 to the late Salome Nyangasi Terah. The applicants maintained that the alleged nondisclosure had prompted proceedings seeking revocation of the confirmed grant. 4. They further maintained that the respondents had commenced or threatened eviction proceedings against persons occupying the suit property, despite the existence of the applicants’ claim and the pending succession proceedings. The applicants stated that the beneficiaries of the estate of Salome Nyangasi Terah had been in occupation of the property since its purchase and that they stood to suffer prejudice if the respondents were allowed to sell, transfer, alienate, subdivide or otherwise interfere with the property before the dispute concerning the competing interests in the property was determined. 5

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5. The applicants therefore sought to be joined to the proceedings, and to have the 3rd and 4th proposed interested parties joined to these proceedings so as to enable the Court to determine the dispute concerning the suit property with all persons claiming an interest therein before it. They further sought the joinder of the County Land Adjudication and Settlement Officer, Kakamega, and the County Land Registrar, Kakamega, as interested parties and leave for the plaintiffs to amend their pleadings accordingly. 6. The application was opposed. Christine Jelagat Chuma, the 2nd plaintiff/respondent, filed a replying affidavit dated 13th October 2024 and stated that the applicants were strangers to the suit and were not in occupation or possession of L.P. Kakamega/Sergoit/100, which was registered in the name of Joseph Kipkirui Chuma (deceased). She maintained that the applicants had not demonstrated any identifiable stake in the proceedings or any claim against the respondents to warrant their joinder. 6

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7. She further stated that the Grant of Letters of Administration had not been obtained fraudulently as alleged by the applicants. She pointed out that the applicants had themselves filed an application for revocation of the Grant and that the Probate Court had previously directed rendered the parties rulings to on similar issues and seek redress before the Environment and Land Court. 8. The 2nd respondent maintained that the applicants had not demonstrated that they had any identifiable interest in the proceedings or any cause of action against the respondents arising from the same transaction or series of acts. She contended that a mere interest in the proceedings was insufficient to justify joinder and that the applicants had failed to demonstrate that their presence was necessary for the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit. 7

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9. She further maintained that the suit property belonged to the beneficiaries of the estate of Joseph Kipkirui Chuma, who were entitled to the property to the exclusion of the applicants. She contended that the applicants’ occupation of the property, if any, was unlawful and that the injunction sought would prejudice the rights of the legitimate beneficiaries. She therefore maintained that the applicants had failed to establish any basis for the grant of the orders sought and urged the Court to dismiss the application. 10.The applicants filed a further affidavit dated 5th March 2026, in which they reiterated that they were the duly appointed administrators’ ad litem of the estate of Salome Nyangasi Terah and that the beneficiaries of the estate had been in occupation of the suit property since its purchase. They relied on the eviction notice dated 17th April 2024, which included the deceased among the persons to be evicted, as evidence that her interest and occupation of the property had been acknowledged. 8

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11. They disputed the respondent’s assertion that L.P. Kakamega/Sergoit/100 was registered in the name of Joseph Kipkirui Chuma, contending that the Green Card showed the property as registered under the Settlement Fund Trustees. They further stated that they were not parties to the proceedings that culminated in the ruling of 31st October 2022 and that an application for review of the ruling dated 18th September 2025 was pending in Succession Cause No. 114 of 2014. They maintained that their exclusion from the proceedings would violate their right to a fair hearing. 12. The applicants further contended that they were necessary parties for the just and fair determination of the dispute, while the County Land Adjudication and Settlement Officer and the County Land Registrar were necessary interested parties as custodians of the transaction documents relating to the suit property, including the letters of consent and mutation form. They maintained that their participation would enable the Court to determine the authenticity and validity of the 9

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relevant documents and conclusively settle all questions concerning the suit property. 13. They finally stated that they stood to suffer irreparable emotional and psychological harm if the suit was determined without their participation, as they risked being disinherited and the graves of their loved ones being desecrated. They therefore maintained that the respondents would suffer no prejudice if the orders sought were granted. 14. The parties filed their submissions. On record are the applicants’ submissions dated 12th May 2026 and the respondents’ submissions dated 22nd April 2026, which the Court has duly considered. Applicants’ submissions 15. The applicants submitted that they ought to be joined as defendants because they claimed an interest in L.P. Kakamega/Sergoit/100 through the estate of Salome Nyangasi Terah, who they stated had purchased a portion 10

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of the property from the late Joseph Kipkirui Chuma. They argued that the respondents’ suit sought their eviction from the property, yet they had not been given an opportunity to defend their alleged interest. 16. They relied on Order 1 of the Civil Procedure Rules and Julius Meme v Republic & Another [2004] KEHC 2623 (KLR) and submitted that joinder was appropriate where it would facilitate the complete determination of the issues, protect the rights of a party likely to be affected, and prevent multiplicity of proceedings. They maintained that Salome Nyangasi Terah had purchased a portion of the suit property and that she and her family had occupied it. They relied on the transaction documents and the fact that the deceased had been named in the eviction notice dated 17 th April 2024 as demonstrating that the respondents were aware of her interest and occupation. 17. They further submitted that the Green Card indicated that the property was registered under the Settlement 11

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Fund Trustees, contrary to the respondents’ assertion that it was registered in the name of Joseph Kipkirui Chuma. They therefore argued that the County Land Adjudication and Settlement Officer and County Land Registrar should be joined as interested parties to produce the official land records and clarify the ownership and validity of the transaction documents. 18. They also submitted that they had challenged the grant issued to the respondents on the ground of material nondisclosure concerning the alleged sale of the property to Salome Nyangasi Terah. Their joinder, they argued, would enable the Court to determine all questions concerning the ownership, occupation and interests in the suit property and would avoid the need for separate proceedings. 19. The applicants consequently urged the Court to allow the application on the basis of natural justice, the right to access justice under Article 48 of the Constitution, and the overriding objective under Sections 1A and 1B of the 12

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Civil Procedure Act, and to join them as defendants and the two land offices as interested parties. Respondents’ submissions 20.The respondents submitted that the applicants had failed to meet the threshold for joinder as defendants or interested parties. They argued that the applicants had not demonstrated any identifiable stake in the proceedings, were not in occupation of the portion of the suit property they claimed, and had not shown any cause of action or right to relief against the plaintiffs arising from the same transaction. They further contended that the consent from the Land Control Board annexed to the application related to Kakamega/Sergoit/28/100, while the letter of consent related to Sergoit/100, which they stated was different from the suit property. 21. The respondents relied on Order 1 Rule 10(2) of the Civil Procedure Rules and the decision in Francis K. Muruatetu & another v Republic & 5 others [2016] KESC 12 (KLR), submitting that a party seeking joinder 13

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had to demonstrate a clearly identifiable and proximate interest, the prejudice likely to be suffered if not joined, and the case or submissions it intended to make. They argued that the applicants had failed to satisfy these requirements. They further relied on Skov Estate Limited & 5 others v Agricultural Development Corporation proposition & that another a mere [2015] interest eKLR in for the litigation was insufficient to justify joinder. 22. The respondents maintained that the portion of land claimed by the applicants was occupied by Christine Terah, the 1st defendant, who had been sued and was capable of defending the interests of the estate of Salome Nyangasi Terah. They therefore contended that the applicants were not residing on the disputed portion and had not demonstrated any prejudice they would suffer if they were not joined. They further maintained that the suit property belonged to the beneficiaries of the estate of Joseph Kipkirui Chuma, who were entitled to its use to 14

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the exclusion of the applicants, and that granting the injunction would perpetuate what they considered unlawful occupation and prejudice the beneficiaries. The respondents consequently submitted that the applicants had not satisfied the conditions under Order 1 Rule 10(2) of the Civil Procedure Rules and urged the Court to dismiss the application with costs. Analysis and determination 23.The Court has carefully considered the application, the response thereto and the submissions. On 14 th October 2025, parties compromised the prayer for temporary injunction and subsequently agreed to have the status quo obtaining on the suit property to be maintained pending hearing and determination of this suit. Therefore, the issues arising for determination is whether the applicants have met the threshold for their joinder to these proceedings as defendants and whether the complete and effectual determination of the dispute herein would 15

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require joinder to this suit of proposed 3rd and 4th interested parties. 24.Order 1 Rule 10 (2) of the Civil Procedure Rules provides for the Power of Court to join a necessary party to proceedings before court 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 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.” 25.Therefore, the court has jurisdiction either on its own motion or on application of any party to join any person to proceedings pending before it, if that joinder will assist the court to effectually and completely determine all questions arising in the suit. 16

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26. An applicant ought to demonstrate a recognizable stake in the proceedings, for them to be joined to a suit. 27. In the case of EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR, the Court of Appeal reiterated the conditions for joinder of a party as follows; “The core of the court’s power to join a party to any proceedings including at the appellate stage, as aptly discussed in Hamisi Yawa & 36,000 others v Tsangwa Ngala Chome & 19 others [2018] eKLR, is to bring on board a necessary party for purposes of determining the real issue(s) in dispute. Also, a joinder of a party is not an automatic right, but one which is granted upon exercise of the discretion of the court concerned. Nonetheless, the court exercises such discretion under defined parameters, that is, it must be satisfied that: a) The Intended party has a personal interest or stake in the matter in question; and that interest is clearly identifiable and proximate enough and not merely peripheral. 17

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b) The Intended party’s presence would enable the court to resolve all the matters in the dispute. c) The intended party would suffer prejudice in case of non-joinder. d) The joinder of the intended party will not vex the parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.” 28.In Fanikiwa Limited v Sirikwa Squatters Group & 20 others; Mibei & 10 others (Applicants) (Petition 32 (E036) & 35 (E038) of 2022 (Consolidated)) [2023] KESC 39 (KLR), the Supreme Court stated: “Enjoinment is not as of right, but at the discretion of the court; hence, sufficient grounds must be laid before the court, on the basis of the following elements...” “….i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, 18

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to stand apart from anything that is merely peripheral. ii. The prejudice to be suffered by the intended interested party in case of nonjoinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined, and not something remote. iii. Lastly, a party must, in its application, set out intends the to demonstrate case and/or submissions make before the the it court, and of those relevance submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.” 29.In Patel & another v Kimundia & 4 others; Wairi (Proposed Interested Party) [2023] KECA 1355 (KLR), the Court of Appeal stated: “From the foregoing, it is a concluded principle that joinder of a party is not an automatic right, but one which is granted upon exercise of the discretion of the court concerned. The court on its part should 19

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exercise such discretion under defined parameters, being that it must be satisfied that…” “a. The intended party has a personal interest or stake in the matter in question; and that interest is clearly identifiable and proximate enough and not merely presence would peripheral. b. The intended party’s enable the court to resolve all the matters in the dispute. c. The intended party would suffer prejudice in case of non-joinder. d. The joinder of the intended party will not vex the parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.” 30. In the instant suit, the basis for the prayer for joinder of the applicants to these proceedings as defendants is that they have a claim over the suit property on the basis of alleged purchase as well as occupation. The applicants 20

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attached mutation form, application for consent as well as letter of consent in favour of the late Salome Nyangasi Terah. The question of veracity of those documents and whether or not the applicants are indeed in occupation cannot be matters for determination at the point of request for joinder. All that the applicant ought to demonstrate is an identifiable stake in the proceedings. Having considered the documents presented, I am persuaded that the estate of Salome Nyangasi has an identifiable stake in these proceedings and hence deserve joinder thereto as defendants. The applicants are at liberty to file and serve defence and attendant documents. They cannot however compel the plaintiff to amend the plaint, as every party has the liberty to proceed in the manner they deem fit. 31. On whether the 3rd and 4th proposed interested parties deserve to be joined in this proceedings, the applicant’s reason was that they are custodians of some important documents including mutation form and letter of consent and that they should be joined herein for purposes of 21

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producing documents in their custody. I do not think that a government officer should be joined to a suit as an interested party merely on the basis that they are custodians of official documents and would be required to produce documents in their custody. Production of documents in court does not require joinder. Joinder to suits is not the core business of government officers. If government officers were to be made parties to suits merely because they are custodians of official documents, then that would be nothing more than abuse of the court process and result in encumbering public officers with unnecessary suits which may in turn affect their service delivery to the public. It will mean that professionals like doctors, land registrars, legal officers, teachers and others, would be expected to spend precious time meant for service delivery to the public, within court corridors. That would be against public interest and public policy. I therefore find no basis or justification to join the proposed 3rd and 4th proceedings. 22 interested parties to these

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32. In the premises, the application dated 16 th July 2025 partially succeeds and the same is hereby allowed as follows; a) The applicants herein, Teddy Laban Kegode and Martin Mukunza Terah, the administrators ad-litem of the estate of the late Salome Terah alias Salome Nyangasi Terah are hereby joined as defendants proceedings to these more particularly to defend the interest of the estate of the late Salome Nyangasi Terah in respect of land parcel No. L.P Kakamega/Sergoit/100. b) The applicants shall file and serve defence, witness statements and list of documents within 14 days of today. c) The costs of the application shall be in the cause. 33. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO 23

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CONFERENCING PLATFORM THIS SEPTEMBER 2026 A. NYUKURI JUDGE In the presence of; Mr. Kigen for the applicants Ms Tirop for the plaintiffs/respondents Court Assistant: Delphine 24 30TH DAY OF

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