Dennis Kosgei Kogo (suing as Legal Representative of the Estate of the late Cherugut Chepnyango) v Cornelly Serem & 2 others; James Cheruiyot Keino (Proposed Defendant)

b. JAMES CHERUIYOT KEINO be granted leave to and ultimately be joined as a Defendant in this suit. c. Costs of the application be costs in the cause. 2. The application is anchored upon the grounds set out on its face and they include; a. That he has proprietary interests over the suit land, NANDI/KAMOBO/5498 b. That the Plaintiff had sold the applicant/proposed Defendant a portion measuring 5.1 acres or thereabouts from the suit and. c. The Plaintiff/Respondent has since filed suit against the 1 st Defendant challenging the legality of the purchase and title documents in respect of the suit land. d. The outcome of the proceedings herein shall greatly affect the proprietary interests of the Proposed Defendant who had purchased 5.1 acres out of the suit property before selling the portion to the 1st Defendant/Respondent. 3. Further, the application was supported by an affidavit sworn on 18th June 2026 by the applicant who stated that he bought the suit land from the Plaintiff, before her demise, KAPSABET ELCLC E020 OF 2025 RULING 2

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and attached a copy of the Land Sale Agreement that was executed by the parties. He stated that in the year 2013, he approached the 1st Defendant and offered to sell him the property. That the 1st Defendant agreed to purchase it and paid the Applicant a deposit and eventually the balance. He attached copies of the Land Sale Agreement and the acknowledgment receipts for the purchase price. 4. The Respondent /plaintiff through Cheruiyot Lagat and partners Advocates responded to the application by a replying affidavit sworn on 3 rd July 2026 and averred, inter alia, that the estate has made no claim whatsoever against the Applicant in the plaint; no relief sought against him, no fraud is pleaded against him, and no order prayed for in the plaint is directed at him and further his entry in these proceedings as a Defendant shall render him a busy body used by the 1st Defendant and to derail the process therein. That the suit as pleaded, challenges the legality of the entries made in the register of land parcels NANDI/KAMOBO/121 and NANDI/KAMOBO/5498 and the Applicant’s name never appeared in the register of either KAPSABET ELCLC E020 OF 2025 RULING 3

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parcel. That under the Civil Procedure Rules, 2010, a person may only be joined as a defendant where his presence before the Court is necessary to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the suit, or where some relief sought, or some order would be made, against him, none of which obtains here. 5. The Applicant filed a response to the replying affidavit by his supplementary affidavit sworn on 27th July 2026 where he clarified that joinder of a party as a defendant under Order 1 Rule 10 (2) of the Civil Procedure Rules is not confined to instances where a relief sought or a decree is to be executed against the proposed party, but extends equally to any person whose presence before the court is necessary to enable it to effectually and completely adjudicate upon and settle all questions involved in the suit. That filing a separate suit for indemnity or breach of warranty would occasion a multiplicity of proceedings touching on the same root of title and the same disputed facts, at unnecessary cost to all parties and with the real risk of inconsistent findings KAPSABET ELCLC E020 OF 2025 RULING 4

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between this suit and any such separate suit; and that it is more just and expedient for all questions touching on the validity of the 1st Defendant/Respondent’s title to be determined once in the present proceedings, with his participation as a direct interested party. 6. Mr. Melly learned counsel for the 1st defendant as well as Mr Kwame Ramo instructed by the Honourable Attorney General, did not oppose the applicant’s joinder to the suit as sought in the application. 7. Learned counsel for the Applicant/Intended Defendant filed submissions dated 28th July 2026 and relied on Order 1 Rule 10(2) (supra) and the case of Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd (1999) EA 55 that the propriety of the impugned partition and registration of NANDI/KAMOBO/5498 cannot effectually and completely be settled without inquiry into the very transaction which is the Applicant’s purchase from the deceased and his onward sale to the 1st Defendant. 8. Further, reliance was made on the case of Civicon Limited vs. Kivuwatt Limited & 2 others (2015) eKLR where KAPSABET ELCLC E020 OF 2025 RULING 5

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reference was made to O’Hare & Hill’s Civil Litigation, 7th Edition (1996) page 101 that the court can, in its discretion order for joinder of a defendant despite the principle of dominus litia in order to determine the real matter in question 9. Learned counsel for the Respondent filed written submissions dated 29th July 2026 and relied on the cases cited above and several others to submit that the Applicant is neither a necessary nor a proper party. Further reliance was made on Skov Estate Limited & 5 others vs. Agricultural Development Corporation & Another (2015) eKLR that a person is properly joined to a land dispute where he claims a subsisting interest in the suit land – for instance as a registered proprietor, a person in possession, or a person asserting a present beneficial entitlement – such that the decree would directly affect him. 10. Therefore, counsel submitted that if the 1 st Defendant apprehends that the cancellation of his title would give rise to a claim over against the Applicant on the alleged 2013 sale, the Civil Procedure Rules provide the remedy of third KAPSABET ELCLC E020 OF 2025 RULING 6

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party proceedings. That the Applicant cannot, by selfinvitation, confer upon himself a status that the only party who could conceivably need him has not sought. 11. Having considered the pleadings of the parties and their respective submissions before this Court, the Court finds twinned issues for determination; whether the Applicant has met the requirements for joinder as a Defendant to this sui and who bears the costs of the instant application? 12. The procedure for joinder of a party to proceedings as a Defendant is provided for under Order 1 Rule 10 (2) (Supra) which 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, KAPSABET ELCLC E020 OF 2025 RULING 7

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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 (emphasis added).” 13. From the above provision, the purpose of joining a party to a suit, whether as a Plaintiff or Defendant, is twofold; a) Where that party ought to have been joined but was left out, or b) That the party’s presence before court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit. 14. The Applicant has explained that he deserves to be enjoined to the proceedings because he previously bought the suit property from the deceased, before her demise. That he moved into the property immediately after purchase but never actualized the transfer of the said property to himself. That he decided to sell the said property to the 1 st Defendant in the year 2013 and agreed with the deceased, before her KAPSABET ELCLC E020 OF 2025 RULING 8

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demise, to have the property transferred directly to the 1 st Defendant. 15. To fortify his explanation, he attached sale of land agreements showing his name, that of the deceased, the land parcel number NANDI/KAMOBO/121 and the purchase price paid. He also attached an acknowledgment receipt between himself and the 1st Defendant for Kes. 1,370,000/= (Kenya Shilling One Million and Three Hundred and Seventy Thousand only) being towards the purchase, by the 1 st Defendant, of land NANDI/KAMOBO/5294 parcels and referenced as NANDI/KAMOBO/5295. Additionally, he attached a sale of land agreement dated 29 th August 2013 between himself and the 1 st Defendant for the parcel of land number NANDI/KAMOBO/5498. 16. On the other hand, the Respondent vehemently denied that the Applicant has any interest in the suit property. He attached copies of the green card opened on 16 th June 1976 and another one opened on 22nd August 2013. He contended that the Applicant’s name does not appear anywhere on the KAPSABET ELCLC E020 OF 2025 RULING 9

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green cards, meaning that he has never been the registered owner of the suit property at any time. 17. Regarding the alleged sale of the property to the 1 st Defendant in the year 2013, the Respondent contends that the same cannot hold because the Applicant claims to have passed title which he never held in the first place. He stated that the varying title numbers on the acknowledgment receipt dated 3rd June 2013 show that the Applicant is referring to other properties and not the suit property. He also raised issue with the acreage purported to have been bought by the applicant and subsequently sold to the 1 st Defendant. 18. On that account, what role does the applicant seek to play in the instant suit? There is no doubt that the Applicant does not presently hold any interest in the suit property. The property is registered in the name of the 1 st Defendant and the said partition, registration and transfer was enabled by the 2nd and 3rd Defendants whom were not opposed to the application for joinder. KAPSABET ELCLC E020 OF 2025 RULING 10

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19. It is worth to note that in Departed Asians Property Custodian Board (supra), the Court stated as follows: “A clear distinction is called for between joining a party who ought to have been joined as a Defendant and one whose presence before Court is necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter….for a person to be joined on the ground that his presence in the suit is necessary fr effectual and complete settlement of all questions in the suit one of two things has to be shown, either it has to be shown that the orders, which the Plaintiff seeks in the suit, would legally affect the interests of that party, and that it is desirable, for the avoidance of multiplicity of KAPSABET ELCLC E020 OF 2025 RULING 11

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suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies, (on an application of a Defendant) to be joined as a co-defendant, where it is shown that the Defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.” 20. The Plaintiff herein does not have any claim as against the Intended Defendant who does not hold any interest in the suit property However, the prayers sought in the main suit are likely to have an implication on the intended defendant or will they require any action from the said intended defendant/applicant. 21. Plainly, several questions arise, which, if answered, can assist this Court to effectually and completely adjudicate upon the main suit herein and settle all questions raised in the main suit KAPSABET ELCLC E020 OF 2025 RULING 12

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22. Furthermore, Article 159 of the Constitution of Kenya 2010 does prioritize substantive justice over procedural technicality; see also James Kanyiita Nderitu & another vs Marios Philotas Ghikas & another (2016) eKLR on the fundamental right to be heard of parties inclusive of the applicant in such cases. 23. Additionally, Order 1 Rule 10 (2) of the Civil Procedure Rules 2010 does not mandatorily direct which party should make an application for joinder. In fact, it allows the court to suo moto order for a party to be joined, where such a party would assist the Court in reaching a just determination of the suit. 24. This Court, having considered the prayers sought in the main suit, the response from the Defendants herein and the contents of the instant Application, is of the considered view that for it to completely and adequately settle all questions raised in the main suit, will need to interrogate the root of the title number NANDI/KAMOBO/121. A cursory glance at the documents produced by the Applicant herein point out KAPSABET ELCLC E020 OF 2025 RULING 13

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the fact that the Applicant has certain clarifications to make to this Court to enable the Court reach a just determination of the dispute in the main suit. So, that the presence of the Applicant to this suit is necessary, in order for this court to effectually and completely adjudicate upon and settle all questions involved in the suit. 25. A fortiori, the Application dated 15th June 2026 partially unopposed, is meritorious. The same be and is hereby allowed in terms of leave for joinder of the applicant, JAMES CHERUIYOT KEINO as a Defendant in this suit with costs of the application to abide the cause. 26. The suit is fixed for pre-trial directions on 3 rd November 2026. DATED and DELIVERED at KAPSABET this 29th SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; KAPSABET ELCLC E020 OF 2025 RULING 14

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1. Mr. Serem instructed by Mr. Keter learned counsel for the 1st defendant/applicant 2. Ms. Odeyo instructed by Kwame learned counsel for the 2nd and 3rd defendants 3. Walter and Emmaculate, court assistants KAPSABET ELCLC E020 OF 2025 RULING 15

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