https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3712

Osaga v Odhiambo & 4 others (Environment and Land Case E016 of 2025) [2026] KEELC 3712 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KEELC 3712 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case E016 of 2025 JW Wanyonyi, J June 12, 2026 Between Josephine Akoth Osaga Plaintiff and Osbon Otieno Odhiambo Defendant and Land Registrar Homabay County Interested Party and Maurice Otieno Odhiambo 1st Applicant Janet Adhiambo Odhiambo 2nd Applicant Eric Omondi Odhiambo 3rd Applicant Ruling 1.Vide a Notice of motion dated 3rd November, 2025 the Applicants, represented by the firm of Achero Mufuayia & Co Advocates seeks for the following Orders:i.Leave to join the suit as 2nd, 3rd and 4th Respondents.ii.Costs of the application. 2.The application is premised on twelve (12) grounds, which appear on the face of the application and supported by the affidavit sworn by Maurice Otieno Odhiambo for and on behalf of the Applicants. 3.The averments made in the supporting affidavit are that the plaintiff is the biological mother while the Defendant is a brother to the Applicants. That the suit was instituted by their mother over parcel number LR No East Kasipul Kakelo Kamroth/ 1481 that the said portion was purchased by their father from one Saline Auma Olum when it was known as East Kasipul Kakelo Kamroth/ 373 /measuring about 1.07 Hectares. That the land was sub-divided into East Kasipul/ Kakelo/ Kamroth 1480 and 1481, that the latter was transferred and registered in the names of their mother on 26/2/2025; that since the said property is their home they have a beneficial interest, that their mother holds the same in trust, that the plaintiff caused the same to be illegally transferred and registered in her names, and finally, that their rights are threatened. 4.The Application, is opposed and this was done via a replying affidavit sworn by DR. Osborne Otieno Odhiambo on 2nd March 2026 and grounds of opposition dated 18th December 2025 by Sala & Mudany Advocates acting for the defendant. 5.Counsel for the plaintiff / Respondent confirmed service of the application nevertheless he opted not to file any response. The Court shall deem it that in respect of the plaintiff, the application is unopposed. 6.However, since the Defendant is strongly opposed to the joinder, the court shall proceed to summarise the issues raised in his replying affidavit. 7.While admitting that the applicants are his siblings, he denies that they have any immediate beneficial interest, however he admits that the suit property was originally purchased by their father, He denies holding the property in trust for them, that the suit property was transferred to him legally, that the applicants interest is remote, and they have not, demonstrated any prejudice ,and finally ,that there are other parcels owned by the plaintiff’s husband and which were allocated to the Applicants / intended interested parties. 8.On 3/3/2026 parties were given timelines within which to file submissions. The Court was explicit that the Applicant do file submissions within 14 days as from 3rd March 2026. 9.The implication was that the last day for compliance was 17th March 2026. 10.I have looked at the CTS and it emerges that it is only the Defendant’s Counsel who complied by filing his on 3/2/2026. 11.Counsel for the defendant applicant transgressed by filing his on 3/6/2026, of course without any leave. 12.I will therefore consider submissions by the Defendant's Counsel done. Submissions by the Defendant. 12.The Defendant's submission is dated 2nd March 2026. 13.I note that he has reiterated the same issues raised in his replying affidavit. He relies on Order 1 Rule 10(2) of the Civil Procedure Rules 2010, and the decision of Trusted Society of Human rights Alliance v Mumo Matemu & 5 others, Muruatetu & Another v Republic, Kenya National Commission on Human (Interested parties), and finally, Section 1A and 1B of the Civil Procedure Act. 14.In the above decisions the Supreme Court laid down the elements to be considered when dealing with an application for joinder of a litigant as an interested party. 15.He says the Applicants have not demonstrated their presence is necessary, and further that, their mother instituted the suit to protect the family home and heritage. 16.That joinder will cause delay and complicate proceedings in this matter. Issues for Determination 16.(A) Conditions for joining an Interested party in the proceedings. (B) Whether the Application is merited. 16.It is worth noting that the grant or refusal to join a party who has expressed desire to be joined in a suit is a matter of exercise of discretion. 17.However, this discretion must be exercised judicially and upon reason rather than arbitrarily or capriciously. 18.In order to appreciate who an interested party is, I shall make reference to the explanation or definition of the term interested party. 20.Black's Law Dictionary, 9th edit at Pg 1232 defines "interested party" as:“A party who has a recognizable stake (and therefore) standing in a matter." 20.Closer home, the Constitution of Kenya (Protection of rights and fundamental freedoms) Practice and Procedure Rules 2013 and Court of Appeal Rules 2022 defines an interested party as:“A person or entity has an identifiable stake, legal interest or duty in the proceedings before the Court but is not a party to the proceedings or may not be directly involved in the litigation but has been allowed by the Court upon application, to appear as an interested party to address it in respect of a matter of law or fact." 22.Reiterating an earlier decision touching on the question and echoing the said definition, while offering guidance on the applicable principles in an application for joinder of an interested party, the Supreme Court in the Case of Attorney General v David Ndii & 73 Others (Petition 12 (E016) of 2020 (2021) KESC 17 KLR stated thus:“An applicant to be enjoined as an interested party has to satisfy this Court that it has met the legal requirements for joinder...This Court has laid down the guiding principles applicable in determining an application to be enjoined as an interested party in Trusted Society of Human Rights Alliance V Mumo Matemu & 5 others SC Petition (Application) No 12 of 2013. The principles were affirmed in the case of Francis Karioki Muruatetu & Another Versus Republic & 5 others (Supra) where the Court stated:“……. One must move the Court by way of formal application. Enjoinment is not as of right, but is at the discretion of the Court hence sufficient grounds must be laid before the Court on the basis of the following elements:(i)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 stand apart from anything that is mere peripheral.(ii)The prejudice to be suffered by the intended interested party in the case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.(iii)Lastly, a party must, in its application set out the case and or submission it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that this submission, are not merely a replication of what other parties will be making before the Court." (Emphasis added) 23.Order 1 Rule 10(2) of the Civil Procedure Rule though not addressing who an interested party’s empowers, the Court at any stage of the proceedings, and on such terms the Court will deem just, to strike out the name of a party improperly joined and bring aboard a party whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all question in the suit. 24.The Court of Appeal in the case of E.G Vs THE A.G & 10 Others & The National Gay & Lesbian Rights Commission Civil Appeal (application) No. 536 of 2019 comprising M.K. KOOME (as she then was) P.O. Kiage & A. K Murgor made crucial observation in relation to the Court's power.“The core of the Court's power to join a party to any proceedings including at the appellate stage as aptly discussed in 'Hanyer Tawe & 36,000 Others Vs Tsangwa Mgala Chome & 19 Others (2018) eKLR is to bring onboard a necessary party for the purposes of determining the real issue(s) in dispute. Also, a joinder of 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 must be satisfied that"(a)The intended party has a personal interest or stake in the matter in question, and that the interest is clearly identifiable and proximate enough and not merely peripheral.(b)The intended party's presence would enable the Court to resolve all the matters in 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.(See Kensalt Limited Vs Water Resource Management Authority (2018) eKLR) (B) Whether the Application is merited. 25.The Applicants have in their application stated that they are related to both the plaintiff and the Defendant who are mother and brother respectively. 26.They allege that the defendant illegally transferred the suit land parcel number Kasipul /Kakelo/ Kamroth 1482 to himself and appears to have excluded them from accessing the same. 27.They state that the said property is their family home. 28.It is their case that their mother holds a life interest which is meant to benefit the applicant and their father’s intention was that the property was never intended for the defendant alone but for the benefit of the entire family. 29.The Defendant's position is that Applicants interest is mere derivative and contingent upon the outcome of the plaintiff's case and that the plaintiff instituted these proceeding to protect family home and heritage. 30.Defendant harbours fear that intended interest party will cause delay and complicate the proceedings. 31.I have looked at the pleadings in particular the plaintiff’s pleading in Court 32.The plaintiff has raised issues of fraudulent acquisition of title which was registered without her input. 33.She has not stated that she is acting on behalf of the Applicants and no such authority has been exhibited. 34.The Applicants state that the land in issue is their known home and they will suffer greatly if excluded from their only source of heritage and sentimental attachment. 35.The Supreme Court, in the authorities referred to above has exhorted that the joinder or proposed joinder of an interested party should neither involve or entitle such a party to raise new issues or cause of action not already pleaded by the primary parties in the suit, and this in itself takes care of the Defendant’s concern. 36.At this point in time the hearing has not commenced and the matter remains at the nascent stage. 36.I believe the parties already onboard will suffer no prejudice if the Court allows joinder of new parties. 37.I find that the applicant has met the parameters of seeking to be joined to the proceedings as interested parties. 38.The application is therefore merited. 39.The upshot is that an Order is hereby issued to the effect that the Applicants who are the intended interested parties be enjoined in the suit as interested parties and direct as follows.a.I therefore direct that they file and serve not only the Notice of appointment as an interested party/parties within the next five (5) days but also their respective pleadings within fourteen (14) days of this Order.b.To incorporate the interested parties in the pleading grant leave to file any amended pleadings together with any other documents they so wish.c.Parties are directed to ensure their documents are indexed, paginated, cross-referenced and documents made into a trial bundle to be exchanged before the mention date. 36.Since this matter involves close family member each party shall bear his/her own costs. 37.It is so ordered. RULING DATED AND DELIVERED VIA VIRTUAL PLATFORM ON 12TH JUNE 2026.In the Presence of;Okoyo for Plaintiff- Absent.Sala for the defendant – PresentAchero for interested Party, Mbereta – present.Court Assistant, Ms. Awino-Present. JUSTICE JOHN WALTER WANYONYI, JUDGE