Boaz Atego Ang'awa & 1 other v Elijah Olulo Angawa & 1 other

Order 1 Rule 10 of the Civil Procedure Rules, Article 53(1)(b) of the Constitution of Kenya 2010 and all other enabling provisions of the law. 2. The Applicant seeks the following principal orders: (i) Spent. (ii) That the proposed Interested Party be joined as a party to this appeal. (iii) That once the Interested Party is joined as such, she be allowed to participate in these proceedings on the side of the Appellants. (iv) That such other/further orders be made as this Court may deem fit and proper. 3. The application is supported by a certificate of urgency deponed by her Counsel Erick Ochieng Advocate and a RULING SIAYA HCFA. E015 OF 2025 2

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supporting affidavit sworn by the Applicant on 23rd April 2026 alongside various accompanying annextures. 4. The Applicant’s case as emerging from her supporting affidavit and the grounds on the face of the application is anchored on the claim that she has a direct legal, proprietary and beneficial interest in the suit property known as L.R. No. NORTH SAKWA/MARANDA/1474 (the "suit property") which is the subject matter of this dispute. 5. The Applicant’s gravamen is inter alia; the Applicant is the widow and joint administratrix of the estate of the late Charles George Agolla (who died intestate on 1st September 1990), as evidenced by the Certificate of Marriage and Grant of Letters of Administration Intestate; the Applicant’s late husband Charles George Agolla was a biological son of Robert Ang'awa Onywero (the family patriarch) who passed away intestate on 16th July 1982; Consequently, the late RULING SIAYA HCFA. E015 OF 2025 3

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Charles George Agolla and his beneficiaries (including the Applicant and her son) are legally entitled to a portion of the patriarch's estate; the suit property measuring approximately 24 acres originally belonged to the family patriarch Robert Ang'awa Onywero; that the property was registered jointly in his name and two of his sons Boaz Atego Ang'awa (2nd Appellant) and Joshua Oluoch Ang'awa with each holding a 1/3 undivided interest; the 1/3 portion belonging to the patriarch was left for his remaining children, subject to intestate succession; the family homestead was situated on the suit property. ; under Luo customary law, the family patriarch allocated a specific one (1) acre portion of this parcel to the Applicant's late husband to set up his homestead; this allocation was done in the presence and with the concurrence of the entire family; the Applicant and her family have remained in consistent, continuous and open RULING SIAYA HCFA. E015 OF 2025 4

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occupation of this one-acre portion since then; the Applicant contends that she was completely unaware of the filing, hearing and subsequent determination of the administration proceedings in Succession Cause No. E572 of 2021 before the Chief Magistrate's Court at Bondo; she only discovered the existence of these proceedings and the subsequent appeal when the matter was scheduled for mention before this Court on 16th April 2026; upon instructing her advocates on record M/S Ochieng Omolo & Co. Advocate to peruse the file, she realized that she and her son were omitted as beneficiaries despite their long-standing occupation; she asserts that if the trial court's judgment is allowed to stand without her being heard, she and her family will face immediate disinheritance and eviction from their ancestral home rendering them homeless. RULING SIAYA HCFA. E015 OF 2025 5

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6. In light of these factors, the Applicant pleads that the doors of justice should not be shut against her. She urges that joinder is necessary to satisfy the requirements of natural justice and constitutional fairness as the outcome of this appeal carries severe irreversible implications for her livelihood and proprietary rights. 7. The 1st Respondent's opposition is mounted through a replying affidavit sworn by ELIJAH OLULO ANG’AWA on 20th May 2026 who averred inter alia that; that he is the 1st Respondent in these proceedings and the duly appointed Administrator of the estate of the late ROBERT ANG'AWA ONYUERO (deceased) and the late JOSHUA OLUOCH ANG'AWA (deceased); he confirms his appointment by virtue of Letters of Administration Intestate issued by the Principal Magistrate's Court at Bondo on the 18th day of July 2022;he further states that he is fully conversant with the RULING SIAYA HCFA. E015 OF 2025 6

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facts of this matter and is competent to swear the affidavit; he invites this Honourable Court to note that the application for joinder is fundamentally misconceived, entirely unsupported by the record and represents an attempt to reopen proceedings to inject a new party for purposes serving neither the interests of justice nor the genuine interests of the Intended Interested Party herself; he highlights that the Intended Interested Party swears at paragraph 2 of her supporting affidavit that her deceased husband, CHARLES GEORGE AGOLLA (alias CHARLES AGOLA ANG'AWA) died on 1st September 1990;he explains that the late Charles George Agolla was a son of the late ROBERT ANG'AWA ONYUERO through the house of Mathilda Ang'awa; Consequently, he points out that the Intended Interested Party is the daughter-in-law of the late Robert Ang'awa Onyuero and any interest she claims in his estate runs RULING SIAYA HCFA. E015 OF 2025 7

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through her deceased husband's estate not independently; the deponent further asserts that the Intended Interested Party's claim of being unaware of Succession Cause No. E577 of 2021 until 16th April 2026 is directly and conclusively contradicted by documentary evidence on the face of the record; In opposition to the claims made in paragraph (A) of the Notice of Motion and paragraphs 14 and 15 of the supporting affidavit, the 1st Respondent contends that the record of these proceedings conclusively establishes her active participation and consent to the mode of distribution in the following specific respects: She signed the Consent to Confirmation of Grant (Form 37, Rule 40(8) of the Probate and Administration Rules) filed on 9th January 2024 formally endorsing the confirmation of the Grant of Letters of Administration issued on 18th July 2022 as shown in Annexure "EOA-1; She signed the Consent to Mode of RULING SIAYA HCFA. E015 OF 2025 8

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Distribution thereby filed formally simultaneously on 9th consenting the specific to January 2024 mode of distribution of the estate of the late ROBERT ANG'AWA ONYUERO and the late JOSHUA OLUOCH ANG'AWA as shown in Annexure "EOA-2; he points out that the local area Chief's letter dated 15th November 2021 addressed to the Principal Magistrate at Bondo (Exhibit BAA 003 in the proceedings forming part of the record of appeal at pages 42 and 43) explicitly identifies ROSE AOKO (the Intended Interested Party) as a beneficiary of the 1/3 share of Parcel No. North Sakwa/Maranda/1474 belonging to the estate of the late ROBERT ANG'AWA ONYUERO; he notes that she is listed by name as item 2 among the named beneficiaries of the deceased's portion as shown in Annexure "EOA-3"; he states that in the Amended Summons for Confirmation of Grant filed by himself on 9th January 2024, the Intended Interested RULING SIAYA HCFA. E015 OF 2025 9

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Party was explicitly named and provided for in the proposed distribution schedule with a specific allocation of 0.4 hectares from the 1/3 share of the late ROBERT ANG'AWA ONYUERO in Parcel No. North Sakwa/Maranda/1474 (found on page 19 of the Appellants' Record) as shown in Annexure "EOA-4"; regarding the Intended Interested Party's averment at paragraph 16 of her supporting affidavit that the trial court's Judgment will disinherit her, he states that this assertion fundamentally misrepresents the true state of affairs and conceals critical facts; he acknowledges that the Judgment of the Senior Principal Magistrate Hon. J.P. Nandi dated 16th July 2024 did not allocate her any portion of Parcel No. North Sakwa/Maranda/1474 leaving her out of the court's distribution order; he clarifies that she received nothing because the court departed from his proposed distribution (which had always included her at 0.4 hectares) RULING SIAYA HCFA. E015 OF 2025 10

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and instead adopted the counter-proposal advanced by the 2nd Respondent, ROSEMARY AWINJA ONYWERO which completely excluded her; he maintains that her omission was not due to any action or failure on his part but was a direct consequence of the court wrongly adopting a counterproposal from the 2nd Respondent that was not properly before the court as a formal pleading; he notes that the restoration of his own distribution schedule which protected her is a central issue in the appeal before this Court; he argues that her genuine interest lies in the restoration of his proposed distribution rather than the success of the Appellants' case; he notes that if the Appellants succeed, the grant will be revoked entirely and she will be left with nothing whatsoever not even the 0.4 hectares he proposed for her; he suggests she has been ill-advised regarding her interests; that her application to join the appeal on the side RULING SIAYA HCFA. E015 OF 2025 11

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of the Appellants is directly contrary to her own best interests; he reiterates that her claim of being unaware of the proceedings is factually false and directly contradicted by her signing the consent documents being named by the Chief and being provided for by the Petitioner meaning there is nothing for this Court to remedy on her behalf; he notes that Succession Cause No. E577 of 2021 was fully heard before the Senior Principal Magistrate's Court at Bondo over a period of about three years with evidence adduced, submissions filed and a Judgment delivered on 16th July 2024 during which time the Intended Interested Party was known to the proceedings and signed consent documents in January 2024;he invokes the doctrine of res judicata under Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya asserting that all of its elements are fully satisfied: his distribution of Parcel No. North Sakwa/Maranda/1474 was RULING SIAYA HCFA. E015 OF 2025 12

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directly and substantially in issue and finally decided by the trial court; the Intended Interested Party claims through the estate of the late CHARLES GEORGE AGOLA ANG'AWA, whose interests were fully canvassed and provided for in the proposed distribution schedule; the issue was heard and decided by a court of competent jurisdiction on 16th July 2024; the parties were litigating under the same title regarding the estate of ROBERT ANG'AWA ONYUERO and Parcel No. North Sakwa/Maranda/1474; he contends that introducing her into this appeal is a backdoor attempt to relitigate a conclusively determined matter; he cites the legal precedent of E.T v. Attorney-General & Another [2012] eKLR, which warns courts to guard against litigants evading the doctrine of res judicata by introducing new parties or causes of action to seek the same resolved remedy; he argues that whether the appeal is viewed narrowly (on RULING SIAYA HCFA. E015 OF 2025 13

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whether the Chief Magistrate's Ruling of 7th August 2025 correctly applied res judicata) or broadly, her joinder remains unnecessary and impermissible because she has no independent, unrepresented interest; Specifically, he states that she was not a party to the underlying revocation application and has no grievance with the ruling under appeal; has no contribution to make to the legal questions before this Court; She cannot demonstrate that her presence is necessary under Order 1 Rule 10 of the Civil Procedure Rules, 2010; She cannot explain why she did not seek joinder at the trial stage when she was actively participating and signing consent documents as recently as January 2024; he deposes that joinder at the appellate stage is an exceptional remedy requiring both sufficient interest and a compelling reason for the delay, neither of which has been demonstrated; he points out that the trial court's record RULING SIAYA HCFA. E015 OF 2025 14

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(page 24 of the record of appeal) explicitly shows that the estate of her late husband, CHARLES AGOLA ANG'AWA was allocated Land Title No. measuring approximately North 2.2 Sakwa/Maranda/1469 hectares, absolutely; he dismisses her claim at paragraph 13 of her affidavit regarding a 1-acre homestead occupation on Parcel No. North Sakwa/Maranda/1474 as a bare assertion unsupported by title documents, survey reports, or official searches and directly contradicted by her own signature on the consent documents; he states that if she has any genuine grievance concerning her late husband's estate, her remedy lies in administering that separate estate not in seeking joinder in these proceedings; he objects to Prayer 3 of the Notice of Motion which seeks to let her participate on the side of the Appellants; he reiterates that since the Appellants' success would revoke the grant and leave her with nothing, her RULING SIAYA HCFA. E015 OF 2025 15

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alignment with them combined with factual misrepresentations shows the application is a tactical tool for the Appellants rather than a genuine protection of her interests amounting to an abuse of the joinder mechanism; he deposes that the invocation of Article 53(1)(b) of the Constitution of Kenya 2010 which safeguards children's rights is entirely irrelevant as the Applicant is an adult suing in her personal capacity and as an administratrix; he characterizes this as "constitutional dressing" designed to artificially inject urgency into an unsustainable application; he concludes by stating that the facts deposed to are true to the best of his knowledge, information and belief 6. The 1st Respondent concurrently filed grounds of opposition dated 9th May 2026 wherein it raised objections inter alia; that the foundational premise of the Applicant's request for joinder is entirely false and completely demolished by the RULING SIAYA HCFA. E015 OF 2025 16

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court record; that the Applicant is by no means a stranger to the succession proceedings having personally signed both the Consent to Confirmation of Grant and the Consent to Mode of Distribution in January 2024; the 1st Respondent pointed out that the local area Chief explicitly named the Applicant as a beneficiary of the late Robert Ang'awa Onyuero’s 1/ 3 share of the estate; It was also noted that the 1st Respondent’s proposed distribution schedule had actively catered for her by allocating her 0.4 Hectares; consequently, the 1st Respondent argued that a party who actively participated and formally consented to the mode of distribution during the trial proceedings cannot turn around to claim ignorance of the same; the 1st Respondent contended that the Intended Interested Party is the daughter-in-law of the late Robert Ang'awa Onyuero being the widow of his deceased’s son, Charles George Agola RULING SIAYA HCFA. E015 OF 2025 17

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Ang'awa and therefore possesses no direct personal entitlement to the patriarch's estate; he asserted that under section 35 of the Law of Succession Act, the estate of the deceased patriarch devolves strictly to his children, Since her late husband Charles was one of those children, his respective share passed directly into his own estate upon his death in 1990; the 1st Respondent averred that the Applicant's proper legal path to claiming any share must run through a two-step succession process; first, the late Charles's share of Robert’s estate must formally vest in Charles's estate; Second, the Applicant must pursue that vested share in her capacity as the administrator of Charles’s estate; he asserted that the Applicant has failed to plead or establish either of these mandatory legal steps choosing instead to rest her claim on mere physical occupation of the land, which does not create any right RULING SIAYA HCFA. E015 OF 2025 18

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under the law of succession thus leaving her with no independent standing; despite this legal deficiency, the 1st Respondent emphasized that he had protected the Applicant by including her by name for a 0.4 Hectare allocation.; he explained that her exclusion from the final Judgment was not his fault but was a direct result of the trial court adopting the 2nd Respondent's counter-proposal (which omitted her) instead of his proposed distribution schedule; the 1st Respondent highlighted the stark irony of her position: Should the Appellants succeed in this appeal, the grant of letters of administration will be entirely revoked leaving the Applicant with absolutely nothing; conversely, if the 1st Respondent succeeds, his original distribution schedule will be restored thereby securing her the 0.4 Hectares of land; therefore, the 1st Respondent contended that the Applicant's true interest lies in supporting his case rather RULING SIAYA HCFA. E015 OF 2025 19

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than siding with the Appellants; the 1st Respondent argued that Section 7 of the Civil Procedure Act strictly bars the relitigation of issues that have been finally decided by a court of competent jurisdiction; he pointed out that the Intended Interested Party seeks joinder specifically to support the Appellants' prayer for the revocation of the grant; he asserted that this particular issue is legally dead given that the Court's ruling dated 7th August 2025 had already dismissed the Appellants' revocation application as res judicata, the main dispute having been fully heard and determined by the Judgment delivered on 16th July 2024; the 1st Respondent maintained that the Applicant cannot be joined to resurrect or pursue a relief that has already been dismissed by the court as a clear abuse of process; the 1st Respondent asserted that the Applicant fails to satisfy the legal threshold for joinder at the appellate stage.; he argued RULING SIAYA HCFA. E015 OF 2025 20

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that she has absolutely nothing to contribute on the question of revocation, as she was never a party to that application; regarding the distribution dispute, he contended that her interests are already fully ventilated and protected through the 1st Respondent’s own submissions meaning she has no independent position that is not already properly represented before the court; he invoked Order 1 Rule 10 of the Civil Procedure Rules, which requires a proposed party to be necessary for the court to effectively and completely adjudicate upon the issues; he maintained that this threshold is unmet and further noted that the Applicant has offered no explanation as to why she sat on her rights and failed to seek participation before the Judgment was delivered in July 2024 despite having signed the consent documents in January 2024;the 1st Respondent contended that the late Charles Agola Ang'awa was never overlooked in RULING SIAYA HCFA. E015 OF 2025 21

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the family distribution having received Land Parcel No. North Sakwa/Maranda/1469 (measuring approximately 2.2 Hectares) as an absolute lifetime gift from the patriarch, Robert Ang'awa Onyuero; he argued that because her late husband's estate already received its fair share of land during the patriarch's lifetime, her current attempt to extract additional land from this succession estate via joinder is doubly undermined; the 1st Respondent submitted that if she has any grievances regarding the sufficiency of land, they must be addressed through the separate administration of her late husband's grant and not bypassed through these proceedings; the 1st Respondent asserted that Prayer 3 of the Notice of Motion which seeks joinder specifically to participate on the side of the Appellants exposes the bad faith and improper purpose of the application; he argued that it is highly contradictory for the Applicant to align with RULING SIAYA HCFA. E015 OF 2025 22

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the very parties whose success on appeal would legally extinguish her only realistic path to securing any portion of the land; he asserted that that joinder is a procedural tool designed to protect genuine, independent and unrepresented interests; it is not a device to reinforce a party whose previous applications were dismissed with costs for approaching the court with soiled hands; he stated that Prayer 3 lays bare the highly partisan and collusive nature of this application; the 1st Respondent contended that the Applicant's reliance on Article 53(1)(b) of the Constitution of Kenya 2010 is completely misplaced and serves as mere "constitutional dressing" on a legally unsustainable application; he noted that the Intended Interested Party is an adult litigant whereas the cited article is strictly designed to protect and safeguard the rights of children; he further noted that even if Article 53 were to be applied, the "best interests RULING SIAYA HCFA. E015 OF 2025 23

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of the children" would still heavily favor the 1st Respondent's success as it secures their home at the proposed 0.4 Hectare allocation, whereas the Appellants' success would revoke the entire grant and leave all occupants without any legal entitlement to the land, therefore he argued that Article 53 points in favor of his position not away from it; In summary, the 1st Respondent asserted that the entire application is a patent abuse of the court process; he highlighted the deep factual contradictions in her case noting that she was named by the Chief in 2021 remained a beneficiary in the 1st Respondent's distribution schedule throughout the trial and signed formal consent documents in January 2024,yet she now falsely swears under oath to have had complete ignorance of the process; he contended that the combination of her gross factual misrepresentation, the partisan nature of the reliefs sought, the highly belated RULING SIAYA HCFA. E015 OF 2025 24

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stage of the appeal at which joinder is pursued and the direct contradiction between her stated purpose and her genuine material interests renders the application a clear abuse of process; on the strength of the foregoing grounds, the 1st Respondent prays that this Honourable Court to dismiss the Notice of Motion dated 23rd April 2026 with costs to the 1st Respondent; and grant such further or other orders as the court may deem fit and just to meet the ends of justice. 8. The Appellants and the 2nd Respondent did not file any formal responses to the application. 9. The application was canvassed by way of written submissions. However, it is only the intended interested party who complied. The Interested party filed submissions RULING SIAYA HCFA. E015 OF 2025 25

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dated 26th May 2026 while the 1st Respondent relied on the grounds of opposition and replying affidavit. 10. It was argued that it was uncontested that the Applicant was the Administrator of the estate of CHARLES GEORGE AGOLLA (deceased) 11. It was equally uncontested that the said Charles George Agolla (deceased) was a surviving son and a beneficiary of ROBERT ANGAWA ONYWERO (deceased). Counsel maintained that it went without saying that the proceedings appealed from as well as this appeal related directly to the estate of Robert Angawa Onywero. Consequently, it naturally followed that the Applicant in her capacity as the Administrator of her deceased husband's estate stepped directly into his shoes. It was pointed out that the 1st Respondent conceded that the ruling appealed against did not allocate the Applicant any portion of Parcel No. NORTH RULING SIAYA HCFA. E015 OF 2025 26

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SAKWA/MARANDA/1474 and that she did not appear in the court’s distribution order. 12. Counsel submitted that the trial court had instead adopted the 2nd Respondent’s counterproposal which did not include the Intended Interested Party thereby effectively disinheriting her. 13. Counsel observed that the line of reasoning adopted by the 2nd Respondent in opposing the application was highly interesting. It was noted that the 2nd Respondent conceded that the Intended Interested Party was entitled to 0.4 hectares of the subject property and that his own proposed mode of distribution had originally included her and allocated her that very portion. However, because the trial court adopted the 2nd Respondent's proposal, she was completely excluded. RULING SIAYA HCFA. E015 OF 2025 27

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14. Counsel argued that the 2nd Respondent's contention that the success of this application would result in the complete disinheritance of the Intended Interested Party failed to appreciate that the ruling appealed against had already disinherited her. In essence, Counsel submitted that her participation in this appeal was sought specifically to secure her interest in the subject property and that locking her out of the proceedings would be highly unfair and prejudicial to her rights. 15. Addressing the Court on the 2nd Respondent's raising of the doctrine of Res Judicata, Counsel submitted with respect that the argument was a non sequitur. It was contended that if this argument were applied logically, it would lead to the striking out of the entire appeal itself. RULING SIAYA HCFA. E015 OF 2025 28

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16. Counsel argued that an appeal naturally arises from the facts and findings of the ruling appealed against. In support of this, Counsel relied on the landmark principle established in Selle & Another v. Associated Motor Boat Company Ltd. [1968] EA 123, where the Court held: "The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a re-trial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge's findings of fact if it appears either that he has clearly failed RULING SIAYA HCFA. E015 OF 2025 29

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on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally ." 17. Based on this authority, Counsel argued that the High Court would re-assess and re-evaluate the evidence on record and arrive at its own independent conclusion which was not equivalent to or the same as re-opening the case. The appeal would be dealt with purely on its own merits and not otherwise. 18. Counsel acknowledged that the 2nd Respondent had correctly captured the legal grounds upon which a party can be joined as an Interested Party particularly at the appellate stage. However, it was submitted with all humility that the applicable principles had been fully satisfied by the Intended RULING SIAYA HCFA. E015 OF 2025 30

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Interested Party. In response to the 2nd Respondent's submissions, Counsel highlighted the following specific aspects: the revocation of the grant giving rise to the appeal directly and fundamentally affected her as it took away her right to the 0.4-hectare portion of land which contains her family homestead leading directly to the said portion being granted to the 2nd Respondent; the Intended Interested Party possessed a legitimate legal contribution to make and sought the opportunity to present it to the Court through her written submissions; by his own admission, the 1st Respondent conceded that the Intended Interested Party was entitled to 0.4 hectares of the subject property making it imperative that she be joined as a party to protect her interest and assist the Court in canvassing the relevant legal issues; It was not possible for her to seek joinder at the RULING SIAYA HCFA. E015 OF 2025 31

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primary trial stage as her interests had already been fully catered for in the initial proposals. 19. Counsel reiterated that as demonstrated, the Intended Interested Party's participation in the appeal was necessary to protect her independent interest, an interest that was not being represented or protected by either of the active sides to the dispute and that her presence would assist the Court in determining the appeal. It was submitted that she had sufficient interest and compelling reasons to participate as she stood to lose her home and as the administrator of her deceased husband's estate, she would have no other opportunity to ventilate her case if denied this chance. Counsel maintained that her interest was solely the protection of her home and argued that the objection regarding her intention to support the Appellants was neither here nor there as the simple fact remained that the ruling RULING SIAYA HCFA. E015 OF 2025 32

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appealed against had left her out of the apportionment done by the trial court. 20. Counsel urged the Court to exercise its discretion in favor of the Intended Interested Party citing the established judicial principles governing joinder applications, which require: that the personal interest of the applicant in the application must be set out clearly; that the applicant's interest must be identified and must be in close proximity or relevance to the subject matter; and that the applicant stands to suffer great prejudice or be adversely affected by the outcome of the appeal. 21. Counsel submitted that the Intended Interested Party had fully met this threshold and placed reliance on the Supreme Court decision in Barclays Bank of Kenya (now Absa Bank Kenya PLC) v. Commissioner for Domestic RULING SIAYA HCFA. E015 OF 2025 33

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Taxes, Kenya Bankers Association & Another, SC Petition No. 12 (E014) of 2022. 22. In conclusion, Counsel pointed out that the Intended Interested Party’s application was opposed strictly by the 2nd Respondent alone, as neither the Appellants nor the 1st Respondent opposed it. Since the orders appealed against were in favor of the 1st Respondent and the 2nd Respondent stood to suffer no prejudice from her participation. 23. I have considered the application, rival affidavits, ground of opposition and submissions by the Intended interested party. I find the issue for determination is whether the application has merit. 24. The joinder of parties is governed primarily by Order 1 Rule 10(2) of the Civil Procedure Rules, which provides: RULING SIAYA HCFA. E015 OF 2025 34

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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 the questions involved in the suit, be added." 25. While the Civil Procedure Rules primarily govern trial procedures, the High Court possesses wide appellate jurisdiction to order joinder where the interests of justice demand. The principles governing the joinder of an Interested Party were authoritatively stated by the Supreme RULING SIAYA HCFA. E015 OF 2025 35

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Court of Kenya in Francis Karioki Muruatetu & Another v Republic, SC Petition No. 15 of 2015 [2016] eKLR and re-emphasized in Barclays Bank of Kenya Limited (Now Absa Kenya PLC) v Commissioner of Domestic Taxes & Others [2023] KESC 44 (KLR) : the intended party must have a personal interest or stake in the matter; the interest must be direct, proximate and relevant not peripheral or academic; the intended party must demonstrate that they stand to suffer prejudice if left out; the presence of the party must be necessary to assist the court in resolving the dispute comprehensively. 26. Applying these principles to the facts at hand, the Court notes that the suit property, NORTH SAKWA/MARANDA/1474 is currently the subject of an active appeal. It is an uncontested fact on the record that the Applicant is the administrator of the estate of her late husband Charles RULING SIAYA HCFA. E015 OF 2025 36

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George Agolla, who was a beneficiary of the patriarch's estate. Crucially, both the Applicant and the 1st Respondent agree that the trial Court's distribution order omitted the Applicant leaving her with no share under the adopted counter-proposal. 27. The 1st Respondent argues that the Applicant's proper path is to first vest her deceased husband's interest and that she cannot claim rights based on physical possession alone. While this argument is legally sound under succession theory, the reality is that the trial judgment's distribution order has completely shut her out of any legal claim to the land she physically occupies. Because her home is situated on the suit property, she clearly holds a direct, proximate and proprietary interest in how the appellate court ultimately distributes the assets of the estate. Locked out of this RULING SIAYA HCFA. E015 OF 2025 37

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appeal, she would stand to lose her residence without any forum to air her grievances. 28. The 1st Respondent’s argument that the Applicant signed consent documents in January 2024 does not defeat her current interest. She consented to a distribution schedule that actually allocated her 0.4 Hectares. She did not consent to being completely left out which was the final outcome of the trial Court's judgment. 29. Accordingly, this Court finds that the Applicant has satisfied the primary threshold for joinder. She is not a stranger; she has a direct and highly proximate proprietary interest in the outcome of this appeal. 30. While the Court is minded to allow the joinder, the Applicant’s prayer to join specifically on the side of the Appellants presents a serious procedural and logical hurdle. An "Interested Party" is expected to be a neutral participant RULING SIAYA HCFA. E015 OF 2025 38

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with a stake in the outcome whose presence helps the court resolve the issues impartially. They are not joined merely to champion the partisan cause of one of the primary litigants. As the Supreme Court held in the Muruatetu case (supra), an interested party must not play the role of a primary protagonist or seek to hijack the case to advance a partisan agenda. 31. In this case, the Appellants' appeal seeks the revocation of the grant. As the 1st Respondent astutely argues, if the Appellants succeed in their quest, the grant is revoked, the distribution is set aside and the Applicant is left with no legal allocation whatsoever. The Applicant’s actual interest lies in securing the 0.4 Hectares originally proposed for her by the 1st Respondent which requires overturning the adopted counter-proposal of the 2nd Respondent. RULING SIAYA HCFA. E015 OF 2025 39

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32. By praying to participate "on the side of the Appellants," the Applicant is acting against her own legal interests. Permitting her to join as a partisan ally to the Appellants would distort the appellate issues and compromise her own standing. Therefore, the Applicant shall be joined as an Interested Party in her own right with the liberty to file neutral submissions highlighting her independent claim to the 0.4-hectare portion of the suit property rather than aligning strictly with either of the primary adversaries. 33. The Court notes the 1st Respondent's objection to the invocation of Article 53(1)(b) of the Constitution which protects children's rights. The Applicant is an adult suing in her representative capacity. This Court agrees that the invocation of Article 53(1)(b) is mathematically and legally redundant here. RULING SIAYA HCFA. E015 OF 2025 However, this does not defeat her 40

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application which is amply supported by the general principles of equity, natural justice and Order 1 Rule 10 of the Civil Procedure Rules. 34. Ultimately, the overriding objective of this Court under Sections 1A and 1B of the Civil Procedure Act is to facilitate the just, expeditious and cost-effective resolution of civil disputes. Excluding a widow who has lived on the suit land for decades from an appeal that will determine her ultimate disinheritance would run directly contrary to this objective. 35. In view of the foregoing observations, it is my finding that the proposed Interested Party’s application dated 23rd April 2026 succeeds only in terms of prayer No. (2) thereof. The costs the costs of the application shall abide the outcome of the appeal. Orders accordingly. RULING SIAYA HCFA. E015 OF 2025 41

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Dated, signed and delivered at Siaya this 17 th day of July 2026 D. KEMEI JUDGE In the presence of: Ochieng …………………...………for Intended Interested Party/ Applicant N/A Onyango.................................................for the Appellants N/A Asyah…………………………………. for Respondents Maureene…………………………….……. Court Assistant RULING SIAYA HCFA. E015 OF 2025 42

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