https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3905

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELCLA CASE NO. E041 OF 2024** **BRIAN INGUSO OLUCHO::::::::::::::::::::::::: APPELLANT** **VERSUS** **SEVENTH DAY ADVENTIST CHURCH ::::::RESPONDENT** **AND** **MAURICE MALOBA:::::::::1ST INTENDED INTERESTED PARTY** **SALFASTER MISANGO:::2ND INTENDED INTERESTED PARTY** **PAMELA SHISHA:::::::::3RD INTENDED INTERESTED PARTY** **MISANGO SAKWA::::::::4TH INTENDED INTERESTED PARTY** **RULING** **Introduction** 1. Before court is a Notice of Motion dated 11th May 2025 filed by the intended interested parties, seeking the following orders; 2. **The application herein be certified as extremely urgent, and be heard ex parte, service at the 1st instance be dispensed with;** 3. **The court be pleased to stay the proceedings in this appeal case, and upon staying the same, to grant the applicants herein leave to be joined on this suit as interested parties, pending the hearing and determination of this application and/or appeal;** 4. **Upon grant of the prayers above, the court be pleased to grant leave to the applicants to file necessary documents and serve other parties in this case, for the court to rely upon the said documents to evaluate all issues impacting of this case, pending the hearing of this application/appeal;** 5. **Costs of this case be met by the respondents (the applicants/plaintiffs in the lower court)** 6. The application is anchored on the supporting affidavit sworn by Misango Sakwa the 4th applicant on 11th May 2025. The applicants’ case is that they are leaders of Avashisa Clan and that last year they learnt that the lower court decision had been appealed against. That clan members have been severally summoned by various state agencies, to explain themselves in respect of documents in their custody and did so to the Area Chief in regard to clan meeting minutes. 7. Further that the clan was not aware of the suit filed by Gabriel Akhulunya seeking eviction against Brian Ingosi in Case No. MCELC E009 OF 2025, which case the clan made a follow-up. That the appellant presented the clan with court documents complaining of clan meetings where he was not involved which meetings were meant to dispossess him of parcel S/Kabras/Lukume/3443. That upon scrutiny, it was discovered that Gabriel Akhulunya had filed falsified documents including purported clan meeting minutes which forced clan members to swear affidavits denouncing the same. That therefore the clan scrutinized documents in MCELC CASE E022 OF 2021 and MCELC E009 OF 2025. That Gabriel Akhulunya gave misleading evidence concerning the suit property in MCELC CASE E022 OF 2021. 8. They maintained that the clan noted that there were other falsified documents on the said court file, but that the trial court relied on the falsified documents in its judgment. That the clan filed affidavits in MCELC E009 OF 2025 whereupon the court gave a ruling that was “correct” but which contradicted the judgment. That the manipulated and doctored clan minutes misled the lower court. 9. Further that the appellant challenged the authenticity of the signatures of his father and grandfather, but the trial court failed to consider that challenge. That they are apprehensive that unless they are joined to this appeal so as to set the record straight in regard to documents filed by the respondent in the lower court, this court may not get the true and accurate picture of all the facts and issues in dispute. That in MCELC Case No. E022 OF 2025 the clan did not get opportunity to file documents and testify. 10. They also stated that this case has created divisions in the clan and if the application sought is not allowed it may result in irreconcilable hostilities, fraudulent loss of clan members land and unending court and physical battles. That the applicants need to be joined to this appeal to confirm the veracity of documents allegedly authored by the clan so as to protect the image of the clan and its leaders. 11. The appellant filed a replying affidavit dated 15th June 2025 in support of the application. He stated that various complaints were filed at the police and local administration in respect of clan documents presented in MCELC Case No. E022 OF 2021. That upon receipt of those complaints, the applicants were summoned by police and the chief’s office leading to investigations on the authenticity of those documents. 12. Further that it was upon those investigations by the chief and subcounty commissioner’s office that he realized that clan documents /minutes were manipulated without the knowledge of the clan leadership. That the lower court relied on the manipulated documents and made an erroneous judgment. That the applicants should be allowed to explain the manipulation to this court. He attached a letter dated 19th May 2025 from his area chief. 13. The application was opposed. Fason Wekesa the 2nd respondent filed a replying affidavit and stated that the application was nonsensical as the appellant who lost his claim in the lower court is hiding behind the applicants to argue his case afresh so that he can fill up the weak areas, which is unacceptable as the matter is now *res judicata.* 14. That the applicants are busybodies and guns for hire as they have no stake in these proceedings and the alleged evidence has no probative value. That the appellant acquired the suit property fraudulently and is apprehensive his title will be cancelled. That the matters herein were dealt with by the retired chief and not the current chief who is partisan. That this dispute was well within the applicants’ knowledge and was dealt with by the Deputy County Commissioner Kakamega North Subcounty as the same is a matter of public notoriety. That the appellant was well aware of the documents complained of before the matter was heard in the lower court and never objected to their production. That no justification has been given for the orders sought. 15. Parties filed submissions which the court has duly considered. **Analysis and determination** 1. The court has carefully considered the application and response thereto as well as submissions. The issues that arise for the court’s determination are whether the applicant has met the threshold for joinder to these proceedings as an interested parties and whether there is justification for adduction of new evidence in this appeal. 2. 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.”** 1. Therefore, the court has jurisdiction either on its own motion or on application of a 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. 2. An applicant ought to demonstrate a recognizable stake in the proceedings, for them to be joined to a suit. 3. 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.** **b)The Intended party’s presence would enable 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.”** 1. In the instant case, the applicants’ position is that they are clan elders of the Avashisha clan and that the trial court was misled when the respondent presented manipulated and falsified clan minutes. That they should be joined to these proceedings so that they produce correct evidence and that because there will be hostilities in the clan and its image will be ruined. 2. The suit which is subject of this appeal was brought in the lower court by way of an Originating summons seeking land by adverse possession by the Seventh Day Church against Brian Ingusi Olucho who is the registered proprietor of parcel No. S/KABRAS/LUKUME/3443. That is private land and has nothing to do with the clan. The clan has not shown any legal or equitable interest or claim in respect of the suit property and allegations of reputational damage, in my view, cannot amount to sufficient basis for joinder in a matter where one party has made a claim for land against another party under the doctrine of adverse possession in respect of private land. 3. In the premises, the applicants have failed to convince me that they have an identifiable stake in these proceedings and therefore their prayer for joinder is declined. 4. On whether additional documents should be filed in this appeal, both the appellant and the applicants have stated that the documents filed by the respondent herein were falsified and manipulated and that clarity ought to be given by the clan elders. 5. Section 78 (1) (d) of the Civil Procedure Act grants the court power to take additional evidence or to require such evidence to be taken. Order 42 Rule 27 of the Civil Procedure Rules grants an appellate court power to admit additional evidence. 6. It is trite that grant of an order for adducing new evidence on appeal is discretionary and ought only be allowed in exceptional circumstances where the evidence sought to be produced could not be availed even upon exercise of reasonable diligence. Besides, the evidence sought to be adduced ought to have an important influence on the outcome of the matter and ought to be apparently credible and necessary. Adducing new evidence should not be used as a tool to fix a weak case. 7. In the case of **Mohamed Abdi Mahamud vs Ahmed Abdullahi Mohamad & 3 others [2018] KESC 62 (KLR)** the Supreme Court set out the relevant guidelines to be taken into account by an appellate court when considering an application for adducing new evidence, in the following terms: 8. **“the additional evidence must be directly relevant to the matter before the court and be in the interest of justice;** 9. **it must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;** 10. **it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;** 11. **where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;** 12. **the evidence must be credible in the sense that it is capable of belief;** 13. **the additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;** 14. **whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;** 15. **where the additional evidence discloses a strong prima facie case of willful deception of the Court;** 16. **the Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful;** 17. **a party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case;** 18. **the court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”** 19. The applicants and the appellants having been aware of the documents filed by the respondent in the lower court, which they allege were manipulated, they therefore had opportunity to file documents to demonstrate that the respondent’s documents were falsified; avail witnesses to show the alleged falsification and or cross examine the respondent on the alleged manipulated documents. They have not told this court what stopped them both from filing the documents to that effect in the lower court. 20. From the affidavit sworn by the appellant and the applicants it is clear that the appellant is basically fronting the applicants so as to avail evidence which he ought to have availed before the trial court, but failed to do so. There is therefore no justification to allow the applicants and or appellant through the applicants to adduce evidence in this court at this stage when they had opportunity to do so, before the trial court. 21. In the premises, I find and hold that the application dated 11th May 2025 lacks merit and the same is hereby dismissed with costs to the respondent. 22. It is so ordered. **DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 17TH DAY OF JUNE 2026** 1. **NYUKURI** **JUDGE** **In the presence of** Ms Aloo holding brief for Mr. Wanyonyi for the appellants No appearance for the respondent No appearance for the applicants Court Assistant: Delphine