Komen v Lagat (Enviromental and Land Originating Summons E004 of 2026) [2026] KEELC 3811 (KLR) (17 June 2026) (Ruling)

Komen v Lagat (Enviromental and Land Originating Summons E004 of 2026) [2026] KEELC 3811 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3811 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Enviromental and Land Originating Summons E004 of 2026 GMA Ongondo, J June 17, 2026 Between Daniel Kipchirchir Komen Applicant and Kiptogom Arap Lagat Respondent Ruling 1.. This ruling relates to twinned applications namely the Notice of Motion dated 4th February 2026 (The first application herein) and the Notice of Motion dated 24th February 2026 (The second application herein) by the plaintiff/applicant through Arap Mitei and Company Advocates and the intended interested party/applicant through Mukabane & Kagunza Advocates respectively. 2.The principal prayer in the first application is that this Honourable court be pleased to issue a temporary injunction restraining the Defendant and/or his family, agents, servants, employees and/or any person purporting to act under his instructions from evicting the Plaintiff/Applicant, taking possession, transferring, charging and/or in any way interfere with the Plaintiff’s use, possession and occupation of parcel number Nandi/Mutwot/383 (The suit property herein) pending the hearing and determination of this suit. 3.The foundational basis of the first application is the plaintiff’s/applicant’s affidavit of Twenty (20) paragraphs where he averred in part, that the defendant sold to him five (5) acres and another five (5) acres portions of land out of the suit property at Kshs.690,00/= at Kshs. 700,000 respectively which he paid in full upon signing agreements annexed to the affidavit. That the defendant damaged the plaintiff’s blue gum trees thereon as per the sub county Forest Officer’s report also annexed thereto. Further, the application is premised upon grounds which include;a.That the Plaintiff took possession of the entire 10 acres of the suit property as at 11th December 2007.b.That the Plaintiff fenced the suit property, cultivated it and planted blue gum trees on a substantial portion of the suit property which he has been harvesting from time to time.c.That the Defendant has without any colour of light started interfering with the Plaintiff Applicant’s use of the suit property by cutting down his blue gum trees in a clear attempt to retake possession of the land. 4.In his replying affidavit of thirteen paragraphs sworn on 13th March 2026 in response to the first application and the Originating Summons dated 14th February 2026, the defendant/respondent through Bitok & Sambu Advocates, averred, inter alia, that the plaintiff has been in possession of ten acres, a portion of the suit property from the year 2007. That he has no intention of taking it back from the plaintiff. That he is ready and willing to transfer the suit property to him. 5.The intended interested party’s supplementary affidavit of 14 paragraphs sworn on 28th May 2026 is to the effect that the suit land is directly in issue in KAPSBET ELCC No. 133 of 2021 (The other suit herein). That the issues of occupation, ownership and interference are common in both suits. 6.By her replying affidavit of 14 paragraphs sworn on 29th May 2026 in response to the first application, the intended interested party stated in part, that suit property is the subject in the other suit which is ongoing. That the plaintiff deliberately failed to disclose to this Honourable court the existence of the other suit hence, the first application is premised on non-disclosure and is an abuse of the court process. 7.In the second application, the intended interested party/applicant seeks thus;a.She (Rael Jepkorir Lagat) be enjoined (I think, meant ‘joined’) as an Interested Party in these proceedings.b.The injunction orders issued on 10th February 2026 be lifted, discharging and/or set aside.c.The Originating Summons be consolidated with Kapsabet ELC No. 133 of 2021; Kiptogom Arap Lagat –versus- Rael Jepkorir Lagat & 3 Others (the other suit herein).d.Upon consolidation, directions be issued on the hearing and disposal of the consolidated suits. 8.The second application is premised upon the intended interested party/applicant’s affidavit of thirteen paragraphs of even date with the accompanying documents including copies of amended statement of defence, interim order and alongside bundle of photographs as well as the grounds set out on the face of it. She averred, inter alia, that she is a party inthe other suit land. That the issues in both suits substantially overlap and arise from the same subject matter. That there are interim orders in force which have been breached. That in the interest of justice, the orders sought in the second application be granted. 9.The defendant/respondent opposed the second application by his 19-paragraphed affidavit sworn on 18th March 2026 and implored this Honourable court to dismiss the same with costs. He termed the second application full of falsehoods and ought to be dismissed with costs. That the applicant has no identifiable interest in the suit property as she does not live or occupy it. That the suit property is not a subject of the other suit which touches on trespass unlike adverse possession claim herein thus, the issues in both are different. 10.Notably, the plaintiff/applicant instituted the suit by the way of the Originating Summons seeking the main orders, inter alia; that he be registered as the proprietor of the portion measuring 10 (ten) acres of the suit property having acquired ownership and/or title thereto through adverse possession and the title of the Defendant be declared as having been extinguished by operation of law. 11.The defendant responded to the Originating Summons simultaneously with the first application as stated at paragraph 4 hereinabove. 12.The dual applications were heard by written submissions pursuant to this Honourable court’s directions given on 17th March 2026 in line with Order 51 Rule of the Civil Procedure Rules 2010. 13.The intended interested party filed submissions dated 29th May 2026 terming the first application incompetent, based on material non-disclosure and an abuse of the court process. The plaintiff is not entitled to the equitable orders sought in the first application as he concealed material facts on the other suit as held in the case of Kenya Hotels Ltd vs Kenya Commercial Bank Ltd & another (2004) eKLR avoid parallel proceedings as noted in Law Society of Kenya vs Centre for Human Rights & Democracy & 12 others (2014) eKLR. That the proper course is not to sustain the first application but to align it with the existing suit. 14.Also, learned counsel for the intended interested party/applicant filed submissions dated 29th May 2026 that the second application is merited having met the all the legal threshold for the orders sought therein and implored the court to allow the same. It was submitted that respondent had admitted having allocated the applicant in the second application 14.4 acres hence, the contention that the interested party has no interest in the suit land, is contradictory. Reliance was placed on Order 1 rule 10 of the Civil Procedure Rules 2010 as regards addition of parties to a suit, Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 others (2014) eKLR in respect of interested party’s stake in the proceedings,Pashito Holdings Ltd & another vs Paul Ndungu & 2 others (1997) eKLR, on the right to fair hearing. 15.By the respondent’s submissions dated 29th May 2026, learned counsel for the respondent stated in part that the interested party and her children have frustrated the hearing of the other suit which she has relied to claim interest in the suit property. That the plaintiff is not a party to the other suit. That there are no justifiable grounds for the two suits to be consolidated thus, the second application lacks merit and the same be dismissed with costs. Counsel cited, among others, the case of Lucy Nungari Ngigi & 128 others vs National Bank of Kenya Ltd & another (2015) eKLR, to buttress the submissions. 16.In the foregone, are both applications meritorious? 17.It is noteworthy that the second application seeks temporary injunction. Order 40 of the Civil Procedure Rules 2010 which governs the said relief. 18.The fundamental principles for granting temporary injunctions (interlocutory injunction) including that the applicant must establish a prima facie case with a probably of success, are well settled; see Giella vs Cassman Brown & Company Ltd {1973} E A 358, Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014) eKLR. 19.It must be borne in mind that this Honourable court’s mandate to grant interim preservation orders is drawn from section 13(7) of the Environment and Land Court Act 2015 (2011). 20.In the case of Musa Angira Angira vs Industrial and Commercial Development Corporation 2015 KLR, Mutungi J reasoned that the issues that emerged in the matter were highly contested calling for full hearing of the suit. That the merited interim preservation order was status quo in respect of the suit land rather than the temporary injunctive relief sought in the application. 21.It is trite law that status quo order is meant to preserve the subject matter pending the determination or termination of the suit; see Festus Ogada vs Hans Mollin (2009) eKLR. 22.Article 48 of the Constitution of Kenya 2010 provides for access to justice for all. 23.In that regard, joinder should not be denied where it aids the court in reaching a just determination and promotes access to justice as held in Trusted Society of Human Rights Alliance-vs-Mumo Matemu & 5 others (2014) eKLR. 24.Further, this court subscribes to the Supreme Court of the Republic of Kenya decision in the case of Muruatetu & another v Republic; Kenya National Commission on Human Rights& 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated) [2016] KESC 12 (KLR) where it was held that formal application for joinder of parties to a suit which is a right at the discretion of the court, must be founded upon elements; that the applicant has personal interest or stake in the matter and that the same must be set out or identifiable in the application but should not be something remote or prejudicial to the applicant, among others. 25.The plaintiff’s claim pertains to ownership of the suit property by adverse possession. Apparently, the issues in this suit are hotly contested. Therefore, it is the finding of this court that the preservation order over the suit property merited, in the interim, is status quo rather than the temporary injunctive relief sought in the first application; see Ogada and Angira cases (supra). 26.Furthermore, the rights discerned in the other suit and herein arise from the same transaction and to avoid multiplicity of proceedings, the interested party is entitled to the prayers in the second application being guided by Pashito, Trusted Society and Muruatetu cases (supra). 27.Article 50(1) of the Constitution of Kenya 2010 guarantees every person including the intended interested party, the right to access justice and the right to a fair hearing hence, failure to join the interested party/applicant to this suit would violate her Constitutional right. 28.Ultimately, the applications dated 4th February 2026 and 24th February 2026 are meritorious and I hereby allow them on the terms infra;a.Status quo regarding non alteration of the current registration of the suit property, no sale, sub division, charge or any manner of disposal of it and the plaintiff to continue in possession of ten acres of the suit property while the defendant to have the remainder of the same as regards the first application, be maintained by the parties pending the outcome of the consolidated suits.b.As regards the second application;i.Rael Jepkorir Lagat be joined as an Interested Party in these proceedings.ii.The injunction orders issued on 10th February 2026 be lifted, discharging and/or set aside and in lieu thereof order (a) hereinabove to prevail.iii.The instant suit by an Originating Summons be consolidated with the other suit namely Kapsabet ELCC No. 133 of 2021; Kiptogom Arap Lagat –versus- Rael Jepkorir Lagat & 3 others.c.Costs of both applications be in the cause. 29.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 17TH DAY OF JUNE 2026.G M A ONGONDO JUDGEIn the presence of;Mr Arap Mitei learned counsel for the plaintiff/applicant/respondent Mr Isaac Sambu learned counsel for the defendant/respondentMr Lubanga instructed by Mr Kagunza learned counsel for the intended interested party/applicantWalter and Emmaculate, court assistants