https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2928

Morosua v Lesinko & another (Enviromental and Land Originating Summons E016 of 2025) [2026] KEELC 2928 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELC 2928 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Enviromental and Land Originating Summons E016 of 2025 MD Mwangi, J May 15, 2026 Between Jackson Ntaseyio Morosua Plaintiff and Lenku Morosua Lesinko Defendant and Jonathan Morosua Intended Interested Party Ruling Introduction 1.The matter before this Court concerns a Notice of Motion application dated 23rd February 2026. The application is brought by Jonathan Morosua (hereinafter "the Applicant"), seeking to be joined as an Interested Party in the ongoing suit between the Plaintiff and the Defendant. 2.The application is expressed to be brought pursuant to Article 159(2)(d) of the Constitution of Kenya 2010; Sections 1A, 1B, and 3A of the Civil Procedure Act (Cap 21); and Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010. 3.In the substantive application, the Applicant seeks the following principal orders:a.That he be joined as an interested party to the proceedings.b.That upon joinder, he be granted leave to file responses and/or pleadings to effectively participate in the issues in controversy.c.That the costs of the application be in the cause. 4.The application is supported by the grounds set out in the Notice of Motion and a Supporting Affidavit sworn by the Applicant on 23rd February 2026. The Applicant identifies himself as the brother to both the Plaintiff and the Defendant, and the eldest son of the late Morosua Lesinko. 5.The Applicant's claim of interest in the suit property, known as Land Parcel No. Kajiado/Kaputiei-South/1971 (the "suit property"), is based on the following assertions:i.Occupation and Possession: The Applicant states he has resided on the suit property since 2012 following a customary relocation ceremony, where he has established a home, raised children, and grazed livestock.ii.Trust and Beneficial Interest: He deposes that while the land is registered in the names of the Plaintiff and the Defendant , such registration was never intended to confer absolute ownership. He contends that the parties hold the land in trust for the larger Morosua family, as they were only registered because the Applicant and another elder brother were away at the time of documentation.iii.Inheritance Claims: The Applicant argues that the suit property includes interests inherited by his late father from a deceased uncle, Justus Masingoti Lesinko, under Maasai customary law.iv.Prejudice: The Applicant expresses a grave apprehension that if the suit property is partitioned solely between the Plaintiff and the Defendant as currently intended, he stands to be evicted, disinherited, and rendered landless. He maintains his joinder is necessary for the Court to settle the questions of trust and beneficial interests effectively. 6.The Plaintiff filed Grounds of Opposition dated 11th March 2026, contending that the application is misconceived, incompetent, and an abuse of the court process. The Plaintiff’s opposition is anchored on several key points. 7.The Plaintiff argues the Applicant has failed to demonstrate any identifiable or separate interest in the property beyond what is already being determined between the current parties. The Plaintiff highlights that the Applicant is already listed as a witness for the Defendant. He contends the Applicant will have a full opportunity to present evidence in that capacity, making his joinder as a party unnecessary. 8.It is argued that elevating the Applicant to the status of a party would treat him unequally compared to other similarly situated siblings who remain witnesses, thereby complicating and delaying the proceedings. The Plaintiff maintains that the Court can effectively and completely determine the issues in dispute without the Applicant's formal participation as a party. Directions by the court 9.On the court's direction, the application was canvassed by way of written submissions, which submissions have been duly considered in the writing of this ruling Issues for determination 10.Taking into account the pleadings and the rival arguments, the central issue for this Court's determination is whether the Applicant has met the legal threshold for joinder as an Interested Party under Order 1 Rule 10(2) of the Civil Procedure Rules, specifically whether his presence before the Court is necessary to enable the Court to adjudicate upon and settle all the questions involved in the suit effectively and completely. 11.Analysis and Determination 12.The primary provision governing the joinder of parties is Order 1 Rule 10(2) of the Civil Procedure Rules, 2010, which provides:“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 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." 13.The threshold for enjoining an interested party was further elucidated by the Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR, where the Court held that:“An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is finally made, as it will determine his or her rights... In sum, an interested party is one who has a stake in the outcome of the case.: 14.Furthermore, the Supreme Court in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR set out the following elements for consideration:“a)The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough to the outcome of the case. b) The prejudice to be suffered by the intended interested party in the event of non-joinder, must also be demonstrated to the Court’s satisfaction. c) A party must also explain of what value such a joinder will be to the Court." 15.The Applicant asserts that he is the biological brother of both the Plaintiff and the Defendant and has resided on Land Parcel No. KJD/Kaputiei-south/1971 since 2012. He claims a beneficial interest through a customary trust, arguing that the registration of the property in the names of the Plaintiff and Defendant was intended to be in trust for the larger family. 16.The Plaintiff opposes this, arguing that the Applicant is already a witness for the Defendant and that his interests are already covered by the Defendant’s pleadings. However, it is a settled principle of law that the rights of a witness are distinct from the rights of a party. While a witness assists the court in fact-finding, a party has a right to file pleadings, call their own witnesses, and directly challenge the evidence that might lead to the extinction of their proprietary rights. 17.If the Court finds that the land is not held in trust and proceeds to partition it strictly between the Plaintiff and the Defendant, the Applicant—who is currently in physical occupation—faces the risk of eviction and loss of his claimed ancestral share. This constitutes a "clearly identifiable and proximate" interest as required by the Mumo Matemu case. 18.The Plaintiff contends that the joinder will cause delay and that the Court can decide the matter without the Applicant. However, the core of this dispute is the existence of a "customary trust." In Land and Environment matters, the Court is guided by Article 159(2)(d) of the Constitution, which mandates that justice shall be administered without undue regard to procedural technicalities. 19.The presence of a sibling who claims to be a beneficiary of the same trust being litigated is not a "complication," but rather a "necessity" for the finality of the dispute. Joining the Applicant ensures that all claims regarding the beneficial ownership of the suit property are resolved in a single suit, thereby avoiding a multiplicity of proceedings which is discouraged by Section 1A and 1B of the Civil Procedure Act. 20.The Plaintiff argues that joining one brother and not others constitutes unequal treatment. This Court finds that argument tenuous. The Applicant has come forward and demonstrated physical occupation since 2012 and a specific fear of disinheritance. A party who is vigilant in protecting their rights should not be locked out because others have chosen to remain silent or act as witnesses. 21.Having analyzed the law and the facts, this Court is satisfied that the Applicant has a legitimate and identifiable stake in the suit property. His participation as a party, rather than just a witness, is necessary for a complete and effectual determination of whether the suit property is held in trust for the Morosua family. 22.Consequently, the Court finds the Notice of Motion dated 23rd February 2026 to be meritorious. 23.Accordingly, I make the following orders:A.That the application for joinder be and is hereby granted.B.That Jonathan Morosua be and is hereby enjoined in this suit as the Interested Party.C.That the Interested Party be and is hereby granted leave to file and serve his appropriate Pleadings and/or Response to the suit within fourteen (14) days from the date of this ruling.D.That the Plaintiff and Defendant be at liberty to file and serve any consequential amendments and/or replies within fourteen (14) days of service of the Interested Party's pleadings.E.That costs of this application shall be in the cause.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Kudate h/b for Mr. Sakimpa for the Plaintiff/RespondentMs. Wanjiku for the Defendant and the Interested PartyCourt Assistant: AlexM.D. MWANGIJUDGE