https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4176

Agro Chem Housing Co-operative Society Ltd v Lake Holdings (Kenya) Ltd & another (Land Case E018 of 2023) [2026] KEELC 4176 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4176 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Land Case E018 of 2023 E Asati, J July 2, 2026 Between Agro Chem Housing Co-operative Society Limited Plaintiff and Lake Holdings (Kenya) Limited Respondent and Francis Juma Oluoch Proposed Interested Party Ruling 1.This ruling is in respect of the Notice of Motion application dated 30th July, 2025, brought pursuant to the provisions of article 25(1), 40, 50, and 159 of the Constitution, sections 1A, 1B, and 3A of the Civil Procedure Act Cap 21 Laws of Kenya, and Order 51 Rule 1 of the Civil Procedure Rules. 2.The application brought by Francis Juma Oluoch, a proposed Interested Party, sought orders that;a.The court be pleased to join the applicant in the suit as a 2nd Defendant.b.The court be pleased to set aside the judgment delivered on 15th July, 2022, and all proceedings ex debito justitiae.c.In the alternative, the court be pleased to review its judgment delivered on 15th July, 2022, and remove the property known as Kisumu Municipality L.R. NO.13432/43 belonging to the applicant.d.The costs of the application be provided for. 2.The application was supported by the averments in the Supporting Affidavit sworn by the Applicant and the annexures thereto. 3.The case of the applicant is that he is the registered owner of the suit land parcel No. Kisumu Municipality L.R. 13432/43, which he purchased from Lake Holding Kenya Ltd on 2nd June, 2010. That upon purchase, the Applicant took possession of the suit land and developed residential units thereon. That the Applicant did due diligence before purchase, and that the Defendant, who was the registered owner, transferred the suit land to him. 4.That the suit herein was filed on 10th October, 2012, long after the Applicant had acquired the suit land. 5.That the Applicant and his family reside on a section of the suit land while the rest of it is occupied by tenants. That the Applicant learnt only on 23rd July, 2025, that there exists a judgment in this matter which had nullified his certificate of title. 6.That there was material non-disclosure of material facts on the part of the Respondent, leading to a miscarriage of justice. 7.That the Applicant is not a party to the suit, yet he owns part of the suit property, hence the need for him to be joined in the matter. 8.That unless the order sought is granted, the Applicant shall be denied the right to be heard, and the right to a fair hearing, and his right to property under Article 40 of the Constitution shall be infringed. 9.Attached to the Supporting Affidavit was a land sale agreement dated 2nd June, 2010, between the Defendant (Lake Holdings Kenya Limited) and the Applicant herein. It shows that the property sold was the portion of land parcel No. L.R. 13432 marked as plot No.43 on the surveyed map plan. Also attached to the same Affidavit were a copy of the certificate of title dated 6th September, 2010, in the name of the Defendant and in respect of land parcel No.13432/43, photographs, and a copy of the court judgment dated 15th July, 2022. 10.The application was opposed vide the grounds contained in the grounds of opposition dated 8th October, 2025, and the Replying Affidavit sworn by Emmanuel Mutai on behalf of the Plaintiff/1st Respondent on 19th January, 2025. 11.The Plaintiff/1st Respondent’s case is that the application is incompetent and bad in law. That the judgment dated 15th July is binding and renders the court as functus officio, that the Applicant lacks locus standi, and that the balance of convenience tilts in favour of the application being dismissed. 12.The application was heard orally on 5th July, 2026. It was submitted on behalf of the Applicant that the suit property belongs to the Applicant, who was not a party to the suit and who was not notified of the proceedings. That the Applicant’s rights are protected by the Constitution. 13.That the property is listed in the judgment as one of the properties whose title is to be cancelled. That it will be an injustice for the Applicant to be condemned unheard. That the application has been brought timeously. 14.On behalf of the Plaintiff, it was submitted that upon filing of the suit, an order of injunction was issued restraining any dealing in the land. That the transfer to the Applicant was done in the year 2021, while the agreement was allegedly executed in the year 2010. 15.That there appears to be collusion between the Applicant and the Defendant to defeat the execution of the judgment. 16.That the action of transfer of the suit land was null and void. That if the court is persuaded to exclude the suit land from judgment, sanctions should be issued against the Defendant. I have considered the application.Three substantive reliefs are sought, namely;i.Joinder of the applicantii.Setting aside the judgment and the proceedingsiii.In the alternative to (ii), review of the judgment. 17.Regarding joinder of the Applicant as a party in the proceedings, the law in order 1 Rule 10 gives the court the discretion to add a party who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary to enable the court to effectually and completely to and indicate upon and settle all questions involved in the suit. The suit herein has already been heard and determined, and judgment delivered. 18.The record shows that the judgment was in respect of several parcels of land. There is no contest about the other parcels. To set aside the entire judgment in the circumstances will prejudice the Plaintiff/ decree holder who is entitled to execute the decree, particularly in respect of the other parcels in respect of which there is no contest. 19.And regarding review of the judgment by excluding the land parcel No.13432/43 from the judgment, the grounds for review of a judgment are set out in Order 45 Rule 1 of the Civil Procedure Rules as:i.discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him/her at the time when the decree was passed or the order made.ii.or on account of some mistake or error apparent on the face of the record oriii.for any other sufficient reasoniv.the application must be brought without unreasonable delay. 20.None of the grounds has been disclosed. I find that the grounds for the grant of the relief sought have not been demonstrated because;i.The defendant, in his defence, denied ever selling any of the suit lands to 3rd parties. In essence, denying selling the land to the applicantii.The agreement exhibited by the Applicant did not give vacant possession of the sold land to the Applicant until payment of the full purchase price. There is no evidence that the purchase price was ever paid in full.iii.The certificate of title exhibited and annexed to the Supporting Affidavit was in the name of the Defendant.iv.No evidence was exhibited that the Applicant is the registered owner of the suit land.v.There is no evidence that the photographs exhibited relate to the suit land. 21.I find that it has not been demonstrated that the Applicant is a necessary party for purposes of determining the real issues in controversy in the suit, as he has not demonstrated that he is the registered owner of the land. 22.If the Defendant indeed sold the land to the applicant, the applicant has recourse to the Defendant for redress. 23.The application is dismissed. Each party shall bear its own costs of the application.Orders accordingly. RULING DATED AND SIGNED AT KISUMU AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY, 2026.E. ASATI,JUDGE.In the presence of:Atika: Court Assistant.Mukhabani for the Applicant.Ouma Akinyi h/b for Yogo for the 1st Respondent.No appearance for the Defendant/ 2nd respondent