Myawa Nyale Nyawa v The Sub-County Land Adjudication & Settlement Officer, Kinango & another

The ruling determined the miscellaneous application with finality. The instant application 3. The application by the 3 applicants dated 5th May 2026 is brought under Order 51 Rule (1), Section 3, 3A of the Civil Procedure Act. It seeks the following orders; a. Spent b. That Pending the hearing and determination of the Application, there be stay of the Ruling delivered on 19th June, 2025 and all its consequential orders. c. That in the interest of doing substantive justice, protecting fundamental rights and freedoms as guaranteed in the Constitution of Kenya, BEJA MWERO, SALIMU NGOJA MWERO AND NGOME NGOJA MWERO the Applicants be allowed to join this matter as additional Respondents long after the delivery of the Ruling. d. That this Honourable Court be pleased to set aside the Ruling and orders of this Court delivered on 19th June, 2025 and allow the Applicants to file and serve an Affidavit in Reply to the miscellaneous Application and any other documents relevant thereto. e. THAT cost of the Application be provided for. 4. The application is premised on the grounds on its face and the supporting affidavit of Ngome Ngoja Mwero sworn on 5th May 2026. In a nutshell, it is the Applicants contention that the Applicant in the Miscellaneous Application Nyawa Nyale Nyawa filed the miscellaneous application and failed to disclose to the court that together with other people, he had filed before this Honourable court ELC NO. E043 OF 2022 and as such obtained the ruling to his application through concealment and misrepresentation of facts. That he too failed to joined the applicants herein in these proceedings yet they were adjudicated as the owners of the suit land, plot no. 403, Mazola adjudication section, Kinango Sub-County. 5. It was deposed that the effect of the Ruling is to open up the Adjudication process yet the process in Mazola was almost complete. He annexed a copy 2 Ruling ELCLC MISC E009 OF 2024

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of a letter dated 26th March, 2024 from the Adjudication Officer as evidence that the land was adjudicated to them. 6. He further deposed that, while the adjudication process was on-going, the Applicant in the Miscellaneous Application came to Court and filed Case No. E043 of 2022 (Nyawa Nyale & 49 Others vs Beja Ngoja Mwero & 7 Others). A raised a Preliminary Objection on the court’s jurisdiction was raised, argued and upheld. The said suit was consequently struck out. He annexed a copy of the Ruling and averred that, from the ruling, the applicant in the miscellaneous application was aware that he was to pursue his Objection through the Adjudication Officer yet for over one year, he did not file any objection. 7. He deposed that the instant suit was filed and orders obtained ex-parte without their involvement and by concealment of material facts which facts, they would have set straight had they be involved. It was his averments that the Applicant does not live on the suit land, has never lived on the land and has no house, crops or any tangible assets on the land and his averments that he was going to be rendered homeless is clear misinformation to the court and borders on perjury. 8. The application was opposed vide a replying affidavit sworn by Nyawa Nyale Nyawa on 28th May 2026. He too filed a notice of preliminary objection of even date. The gist of the objection is that the Applicants has no Locus standi to institute and/ or prosecute the instant application as they are not parties to the proceedings and has not sought and obtained leave of the Court to be so joined. That consequently, the Court lacks jurisdiction to entertain non-parties who have not been properly joined in accordance with Order 1 Rule 10 of the civil procedure Rules, 2010. 9. In the Replying Affidavit he accuses the Applicants of inordinate delay in seeking to stay and subsequent setting aside the ruling delivered on 19th June,2025 and that the Applicants have failed to demonstrate sufficient cause why the matter should be reopened more than a year after the delivery of the ruling. 10.He too deposed that the applicants have not demonstrated to this court what of loss if at all they are likely to suffer or what loss has been occasioned by the ruling of 19th June, 2025.He accused the applicant of dirty hands for concealing the fact they had a pending case ELCLC E136 of 2025 over the subject land and noted that the applicants were simply sympathy seekers 3 Ruling ELCLC MISC E009 OF 2024

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bent on creating falsified facts, smear campaign that I do not reside on the suit property in order to hoodwink the court into granting the application. 11.He finally dismissed the Application as contravening the mandatory provisions of the Civil procedure Rules governing joinder of parties and saw it as an attempt to obstruct, delay, and/or defeat the due process. He thus prayed that the same be dismissed with costs. 12.Directions were given that the Application be disposed of by way of submissions. Counsel for the Applicants filed submissions dated 27th July 2026 while Nyawa Nyale Nyawa’s submissions are dated 24th August 2026. Applicants’ submissions 13.It was submitted for the Applicants that Mazola Adjudication Section was declared in 2014 and the Applicants were adjudicated as owners of Plot No. 403 as confirmed by a letter dated March 26, 2024. That Nyawa Nyale Nyawa the applicant in the initial motion and 49 others sued the Applicants claiming that they too are beneficially entitled to be registered as owners. It was noted that on July 19, 2023, Justice A. E. Dena struck out that suit under Section 30(1) of the Land Adjudication Act because the adjudication process was still ongoing. The court advised the claimants to pursue their objection through the Land Adjudication Officer, but they failed to do so. 14.After failing to file the objection Nyawa Nyale Nyawa filed a miscellaneous application seeking leave to lodge an objection. He obtained a ruling delivered on June 19, 2025, without notifying or enjoining the registered landowners. The Applicants argue that Nyawa Nyale Nyawa committed perjury and misled the court by feigning ignorance of the adjudication process, despite having participated in the 2022 suit regarding the same matter. It is also argued that the Applicants were intentionally excluded from the application to prevent them from informing the court about the prior proceedings. Counsel urged the court to set aside the ex-parte Ruling delivered on June 19, 2025, allow the Applicants (registered owners) to be enjoined as Respondents to defend the matter. Respondent’s submissions 15.The Respondent submits that the intended Applicants seek an order that they be joined as additional Respondents long after the ruling was delivered on 19th June 2025. That Order 1 Rule 10(2) of the Civil Procedure Rules 4 Ruling ELCLC MISC E009 OF 2024

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permits the Court, at any stage of the proceedings, to add a person whose presence is necessary to enable the Court effectually and completely to adjudicate upon and settle the questions involved in the suit. He notes that the purpose of joinder is therefore to facilitate the complete determination of a matter that is still pending before the Court and that joinder is not intended to provide a mechanism through which a concluded matter can automatically be reopened after judgment. He cited tha case of Nyawira & another v Archer Dramond Morgan Ltd & another [2026] KEELC 755 (KLR), where the Environment and Land Court reaffirmed that joinder under Order 1 Rule 10(2) operates in the context of pending proceedings and that, where nothing remains to be determined, the Court becomes functus officio. 16.He too cited Muia v Ndetei & another [2024] KEELC 7200 (KLR) and Letoluo & 2 others v Haba Haba Investment Ltd & 4 others [2026] KEELC 382 (KLR), on the same principle. He urged the court to find that there is nothing pending for hearing to which an application for joinder can be granted. 17.The respondent also submitted that the application does not meet the criterion for stay or review of the ruling as provided under Order 42 (6) and Order 45 Rule 1. They have neither established any discovery of new and important matter or evidence which, despite due diligence, was not within the Applicants’ knowledge; any mistake or error apparent on the face of the record; or any other sufficient reason to warrant a review nor shown any substantial loss likely to be occasioned. 18.He too argued that the ruling was not a determination of title and neither declared him the registered owner of Plot No. 403 nor cancel the names of the Applicants from the adjudication register. All the court did was to grant him leave to pursue the statutory objection process under Section 26 of the Land adjudication Act. He was granted 30 days within which to file an objection with the Mazola Land Adjudication Committee. He thus dismissed as misleading; the Applicants' characterization of the ruling as having finally determined ownership of Plot No. 403 and noted that their substantive ownership claim, if any, remains subject to the statutory adjudication process. 19.The respondent also submitted that Section 26 of the Land Adjudication Act allows a person named in or affected by the adjudication register who considers it incorrect or incomplete to object to the adjudication officer within the prescribed statutory period. He noted that by the Applicants own 5 Ruling ELCLC MISC E009 OF 2024

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evidence to wit; letter dated 26th March 2024 from the Sub-County Land Adjudication and Settlement Officer, Kinango, Mazola Adjudication Section was still under the demarcation stage of the Land Adjudication Act. As such there is no evidential basis for the assertion that the ruling "opened up" a process that had already become final. 20.In a nutshell, the Respondent urged the court to dismiss the application with costs. Analysis and determination 21. I have now considered the applicants’ application as well as the opposition thereto by the respondent. I have also considered the submissions by the counsel for the Applicants the Respondent. The issues for determination are whether the applicants have satisfied the legal threshold for Stay/review/setting aside of the ruling of 19th May 2026 and secondly whether the applicants’ prayer for joinder should be granted. Joinder of parties 22.Order 1, Rule 10 of the Civil Procedure Rules governs joinder of interested parties. Order 1, Rule 10 provides that; “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.” 23.Whereas the Applicants appear to have an identifiable stake in the suit by virtue of having been adjudicated as owners of the suit property, I am in agreement with the Respondent’s submission that there is no suit pending to be determined. Their Joinder as Respondents at this stage will be an exercise in futility in adjudicating the suit. In the Court of Appeal case of JMK v MWM & another [2015] KECA 524 (KLR): “We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where 6 Ruling ELCLC MISC E009 OF 2024

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proceedings are still pending before the Court. Sarkar’s Code, (supra) quoting as authority, decisions of Indian Courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings. In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 Rule 10(2) of our Civil Procedure Rules, in TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS [2014] EA 448, stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable.” 24.Similarly, in Nyawira & another v Archer Dramond Morgan Ltd & another [2026] KEELC 755 (KLR), referred to by the Respondent the Environment and Land Court reaffirmed that joinder under Order 1 Rule 10(2) operates in the context of pending proceedings and that, where nothing remains to be determined, the Court becomes functus officio. Same position was maintained in Muia v Ndetei & another [2024] KEELC 7200 (KLR) the Court considered an application for joinder after judgment and, relying on JMK v MWM & Another [2015] eKLR, held that Order 1 Rule 10(2) is generally applicable while proceedings remain pending and does not ordinarily permit reopening a concluded matter. 25.The initial proceedings herein was a Miscellaneous Application in which only one substantive prayer was sought to wit; that the Applicant therein be granted leave to file an Objection with Mazola Land Adjudication Committee on Parcels of land known as Plot No. 403 Mazola Adjudication section measuring Approximately 1246.15 Ha. That prayer was granted vide the ruling of 19th May 2025 essentially determining the matter fully. The file was duly closed. There is therefore nothing left to be determined. 26.It is already clear that the entire application is for dismissal. It is however important that I address, albeit briefly, the 2nd issue. Whether the application has met the legal threshold for stay and review. 27.To start with, the Applicants application is brought only on the provisions of Under Order 51 Rule (1), Section 3, 3A of the Civil Procedure Act. No other provision of the Law was invoked despite seeking a plethora of orders. That 7 Ruling ELCLC MISC E009 OF 2024

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notwithstanding, and even if the failure were to be treated as a procedural defect that should not be permitted to sacrifice substantive justice, no attempt was made to establish the legal perquisites for grant of stay of execution or review. Order 42 (2) of the Civil Procedure Rules provide for conditions precedent to grant of stay application as follows; ‘No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant’ The applicant did not show what substantial loss they are likely to suffer if the Respondent lodges his objection with the Land Adjudication Committee as by Law provided. 28.On the same breath, no attempt was made to satisfy the requirements of Order 45, rule 1 which provide for review in the following manner; ‘(1) Any person considering himself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay’ 29. If anything, ruling 19th May 2025 did not declare ownership or issue titles; it merely granted access to the statutory objection process under Section 26 of the Land Adjudication Act. With the confirmation from Kinango Adjudication Office that the section was still at the demarcation stage, directly contradicting claims that the adjudication register had become 8 Ruling ELCLC MISC E009 OF 2024

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final, due process under the Land Adjudication Act will offer all the parties the requisite opportunity to ventilate their claim or counter any claims made. 30. The upshot of all these is that I do find the application dated 5th May 2026 not merited and dismiss the same in its entirety. 31. In the circumstances of this case, where the applicants are non-parties in this file, which file has final orders and is duly closed, it is prudent to have each party bearing their own costs. Dated, Signed and delivered at Kwale on this 29th day of September 2026 HON. E.G NDERITU L J ELC KWALE In the presence of: Ms. Zahira Nina h/b for Dr. Chitembwe for the Applicants Ms. Halima C/A 9 Ruling ELCLC MISC E009 OF 2024

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