https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1243

Kaangi & another v Pulei (Suing as the Personal Representative of the Estate of Kasaine Pulei Kinyoei alias Kasina Ole Pulei) & 8 others (Civil Appeal E322 of 2023) [2026] KECA 1243 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KECA 1243 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E322 of 2023 DK Musinga, SG Kairu & LA Achode, JJA July 3, 2026 Between Joseph Babu Kaangi 1st Appellant Pauline Nashur Babu 2nd Appellant and Munket Pulei (Suing as the Personal Representative of the Estate of Kasaine Pulei Kinyoei alias Kasina Ole Pulei) 1st Respondent Menta Enerisa Risa Pulei 2nd Respondent Matipei Ole Risa 3rd Respondent Kipirori Ole Risa 4th Respondent Mpoye Ole Risa 5th Respondent Kipeno Enerisa 6th Respondent Kongo Ole Rise Munii 7th Respondent Land Registrar Ngong 8th Respondent County Surveyor, Kajiado 9th Respondent (Appeal from the Judgment of the Environment and Land Court of Kenya at Kajiado (Gicheru, J.) dated 15th March 2023 in ELC Case No. 960 of 2017) Judgment 1.This appeal arises from a ruling of the Environment and Land Court at Kajiado (ELC) (Gicheru, J.) delivered on 15th March 2023 dismissing the appellants’ application dated 14th March 2022 in which they had sought leave to be joined as parties in the suit ELC Case No. 960 of 2017 and for an order to set aside the judgment entered therein in favour of the 1st respondent. 2.The background is that the 1st respondent, Munket Pulei, suing as the legal representative of Kasaine Pulei Kinyoei alias Kasaine ole Pulei, deceased, filed suit against the 2nd to 9th respondents before the ELC Kajiado, being ELC Case No. 960 of 2017 in which he sought a declaration that the sub-division of the property known as Title Number Kajiado/Kipeto/347 into parcels known as Title Number Kajiado/Kipeto/1792, 1793, 1794, 1795, 1796 and 1797 was fraudulent; an order for the recall and revocation of those titles together with their subsequent subdivisions, to revert the same to the parent Title Kajiado/Kipeto/347. Also sought was an order for the re-survey of Kajiado/Kipeto/347 and 348 to establish the total acreage, dividing the same into two equal portions and for re- establishment of the boundary beacons. 3.The 1st respondent’s case before the ELC was that his father, the deceased, and one Risa ole Munii Pulei jointly owned Title Number Kajiado/Kipeto/44 measuring approximately 232.5 hectares of which they sold 20.24 hectares to one Moses Tinga. A sub-division of Title Number Kajiado/Kipeto/44 yielded parcel numbers Kajiado/Kipeto/347, 348 and 349 which were registered in the names of the deceased, Risa ole Munii Pulei and Moses Tinga respectively. 4.Parcel number Kajiado/Kipeto/347 was then sub-divided into the six parcels known as Title Number Kajiado/Kipeto/1792, 1793, 1794, 1795, 1796 and 1797 registered in the names of the 2nd to 7th respondents that the 1st respondent sought to have nullified. The six parcels had apparently been further sub- divided, and it would appear the appellants own one of the ensuing sub-divisions. 5.According to the 1st respondent, parcel numbers Kajiado/Kipeto/347 and 348 in the names of his father, the deceased and Risa ole Munii Pulei should have been equal in size. According to him, each was supposed to be 103.13 hectares but a re-survey done at his instance apparently revealed that the size of his father’s parcel had reduced to 96.86 hectares instead of 103.2 hectares as appears on the title deed. He asserted that the 2nd to 9th respondents had fraudulently increased the surface area of 347 to 125.73 hectares instead of 103.13. A report of the Land Registrar produced before the trial court apparently revealed that 347 measured 96.77 while 348 measured 123.63 hectares. The 1st respondent therefore sought to undo the “inequality” in those portions as the deceased and Risa ole Munii Pulei were supposed to share equally the land that remained after the sale of a portion to Moses Tinga. 6.In the statement of defence dated 26th April 2019 by the 2nd to 9th respondents it was pleaded that sub-divisions bearing title numbers 1793, 1795, 1796 and 1797 “were twenty years ago disposed to third parties” while Title Numbers Kajiado/Kipeto/1792 and 1794 “are charged at Agricultural Finance Corporation”. It was pleaded further in the defence that Agricultural Finance Corporation and the current owners of the other parcels, namely, title numbers 1793, 1795, 1796 and 1797 “who have real interest in the suit properties are likely to have their interests in the said properties affected without being accorded an opportunity to be heard in contravention of the rules of natural justice.” In that regard, the learned trial judge in his judgment framed the issue thus: “can failure to join third parties who may have bought land from the defendants be fatal to the plaintiff’s case”? In disposing of that issue, the learned judge pronounced in his judgment as follows:“…I find it was not necessary to join third parties because the relief sought can be recovered from the defendants. The land that the plaintiff lost due to the mistake is still in the custody of the defendants.” 7.Ultimately, in his judgment delivered on 20th December 2021 the learned judge allowed the 1st respondent’s suit and declared that parcels known as Title Numbers Kajiado/Kipeto/1792, 1793, 1794, 1795, 1796 and 1797 as fraudulent, and proceeded to nullify the same. The judge further ordered that Title Numbers 347 and 348 as they existed originally, be re- surveyed to establish the total acreage and for the same to be divided into equal portions and for the re-establishment of boundaries. 8.The appellants, Isaac Ndegwa Wachira and his wife, Eva Naipei Kuye, as owners of the property known as Title Number Kajiado/Kipeto/4574 measuring approximately 1.12 Hactares who were affected by the judgment, among other persons who independently applied, moved the court by an application dated 14th March 2022 seeking their joinder in the suit, and for the setting aside of the judgment. They asserted in support of that application that the judgment affected their proprietary interests; that the 1st respondent knew of their interest and did not join them in the suit or serve them with court process; and that they were not heard. 9.The 1st respondent in opposition to the application asserted that the application was overtaken by events because the decree had been executed and titles in respect of 1792 - 1797 revoked, reverting the same to the parent title 347; and that the appellants had not demonstrated how the judgment and decree affected them. 10.In dismissing the application, the learned Judge in his ruling the subject of this appeal delivered on 15th March 2023 found the application lacking merit because the appellants had not proved the decree would affect their “so called proprietary interest”; that they had not attached pictures to their application to show what they have on the land and how it will be affected by the decree. The Judge further stated that in the judgment, “it is already held that the reliefs sought from the defendants can be recovered from the defendants” and the land the 1st respondent “lost is still in the custody of the defendants”. 11.The appellants have challenged that ruling on grounds set out in the memorandum of appeal as amplified in written submissions dated 13th December 2023 which were orally highlighted before us by Mr. K. Mogeni, learned counsel for the appellants during the hearing of the appeal on 17th November 2025. He was supported in the appeal by Mr. Ngaira, learned counsel for the 2nd to 7th respondents. In opposition to the appeal, learned counsel Mr. Maloba relied on the 1st respondent’s written submissions dated 6th May 2024 which he also orally highlighted. 12.The appellants argue that the judgment of the High Court which they sought to set aside cancelled several property title deeds without their involvement, despite their long-standing occupation and ownership; that they are innocent purchasers whose constitutional rights were violated because they were never served with summons or joined as parties to the suit; that the judgment of the ELC unfairly penalized them through process they were not permitted to participate in; that the Judge erred in exercise of judicial discretion, resulting in a miscarriage of justice on account of failure to protect the interests of third parties directly impacted by the boundary redistributions. 13.It was submitted that despite the 1st respondent knowing the appellants were in occupation of the land, he did not include them as parties to the suit; that as a result they were condemned unheard in violation of their constitutional right to a hearing under Article 40 of the Constitution; that the Judge in dismissing the application failed to protect their interests as innocent purchasers, leading to a judgment that directly affects their property without giving them a chance to defend their title. The appellants pray that the ruling of the ELC be set aside and the application dated 14th March 2021 be allowed. As already indicated, counsel for the 2nd to 7th respondents associated themselves fully with the submissions by the appellant in supporting the appeal. 14.Opposing the appeal, it was submitted for the 1st respondent that the appeal is incurably defective and incompetent on account of the supplementary record of appeal having been filed late without leave in violation of rule 90 of the Court of Appeal Rules; that the record of appeal omitted to include critical documents required by rule 89(1) including the pleadings, the certified decree forming the basis of the appeal, and the specific application that was dismissed; that some of the documents included in the record relate to a different application brought by other parties, rather than the appellants' own application. 15.Turning to the merits of the appeal, it was submitted that the learned Judge properly exercised his discretion in dismissing the appellants' application; that under Order 1 rule 10(2), a party can only be joined to a suit while proceedings are still pending; that in the present case the application was made after judgment had already been delivered, the trial court was therefore functus officio; that the appellants did not provide evidence that the implementation of the court’s decree would affect the specific portions of land they bought, nor did they prove they had developed those portions; that in any event, on the strength of the Supreme Court decision in the case of Dina Management Limited vs. County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), the appellants cannot claim to be innocent purchasers of a title that was obtained through a fraudulent process, and the trial court had already declared the subdivision of the land null and void due to fraud. With that counsel for the 1st respondent urged the Court to affirm the decision of the trial court. 16.We have considered the appeal and the submissions. We start with the 1st respondent’s complaint regarding the competence of the appeal. Given the state of the record of appeal before us, that complaint is not without basis. The record of appeal appears to have been prepared without the required degree of care, omitting in the first instance, crucial pleadings before the ELC. However, that appears to have been cured in part through supplementary records of appeal following leave granted by the Deputy Registrar on 17th April 2024 and 25th February 2025. Nonetheless, under rule 107(b) of the Court of Appeal Rules, the 1st respondent ought to have raised the matter of the competence of the appeal by an earlier application and neither was leave of the Court sought to raise the matter at the hearing of the appeal. We will therefore not delve on that. 17.That said, the grant or refusal of the orders the appellants sought before the Judge involved exercise of judicial discretion. Accordingly, the overarching issue in the appeal is whether the dismissal of the appellants’ application constituted an erroneous exercise of judicial discretion by the learned Judge. In other words, was the learned Judge justified in dismissing the appellants’ application? 18.In the case of Apungu Arthur Kibira vs. Independent Electoral & Boundaries Commission & 3 Others [2019] eKLR, the Supreme Court pronounced that in an appeal against a decision made in exercise of a discretion, the criteria for a successful appeal requires demonstration of an error of law or principle; taking account of irrelevant considerations; failing to take account of relevant considerations; or that the decision is plainly wrong. In the same spirit this Court had earlier stated in Kibe vs. Telkom Kenya Limited (Civil Appeal 25A of 2013) [2014] KECA 765 (KLR):Before we can interfere with the learned Judge’s discretion, we must be satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision or, that he misapprehended the law or failed to take into account some relevant matter. In Mbogo & Another- vs- Shah (1968) E.A. 93 at page 95, Sir Charles Newbold P. held,…..a Court of Appeal should not interfere with the exercise of the discretion of a single judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice…”” 19.With those principles in mind, it is evident, based on the background we have set out above, that the question of the suit properties having been sub-divided and further sub-divided and sold to third parties who had been issued with title deeds was raised in the pleadings. In paragraph 9 of the plaint dated 11th December 2017, the 1st respondent pleaded that parcel Number Kajiado/Kipeto/347 was sub-divided, creating parcels known as Title Numbers Kajiado/Kipeto/1792, 1793, 1794, 1795, 1796 and 1797 registered in the names of the 2nd to 7th respondents. He further pleaded that those respondents “may have subdivided their respective portions further” and that he instructed land surveyors to undertake a re-survey which revealed the discrepancies in the surface area. 20.It also bears repeating that in the statement of defence at paragraph 7, it was pleaded that parcels 1793, 1795, 1796 and 1797 were over 20 years ago disposed to third parties, and in paragraph 8 it was averred that there was a risk of the current owners of all those parcels having their interests in the said properties affected without being accorded an opportunity to be heard. 21.Although the application before the Judge did not cite any specific provisions under which it was brought, under Order 1 rule 10 of the Civil Procedure Rules the court is empowered, “either upon or without the application of either party” at any stage of the proceedings to order the striking out of a party improperly joined or the addition of any person who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate and settle all questions involved in the suit. In effect, the trial court could have, suo motto, directed the joinder of parties likely to be affected by the decision of the court, notice having been given of that risk. 22.In the event, the judgment of the trial court did ultimately affect the demonstrated proprietary interests of the applicants without having been accorded an opportunity to be heard. It was not shown that the appellants knew of the existence of the 1st respondent’s suit prior to the delivery of the judgment on 20th December 2021. Had the learned judge taken those matters into account in considering the appellants’ application, which was essentially an application for review of his judgment, he would no doubt have arrived at the conclusion that the appellants were entitled to be heard before orders adverse to their proprietary interests were granted. 23.We are in the circumstances, entitled to interfere with the exercise of discretion by the learned judge. In the result, the appeal succeeds. The ruling of the ELC delivered on 15th March 2023 is hereby set aside and substituted with an order allowing the appellants’ application dated 14th March 2022. Consequently, the judgment of the ELC delivered on 20th December 2021 is hereby set aside. The matter is remitted to the trial court, the ELC, Kajiado, before a judge other than Gicheru, J. for hearing de novo. The matter shall be mentioned before the Presiding Judge ELC Kajiado within 30 days from the date of delivery of this judgment for purposes of giving directions on the trial and expeditious disposal of the matter, including directions regarding filing and service of amended pleadings to join the appellants in the suit. The 1st respondent, who should have joined the affected parties in the suit in the first place, shall bear the costs of the appeal. DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY 2026.D. K. MUSINGA…………………………………………JUDGE OF APPEALS. GATEMBU KAIRU, FCIArb, CArb.…………………………………………JUDGE OF APPEALL. ACHODE…………………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.