https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12038

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA.** **CIVIL SUIT NO. E003 OF 2025** **LOIS CHEPKOPUS LOMUR ……………………………….. PLAINTIFF** * **V E R S U S –** **WILLIAM LOMUR MALER…………………………. 1ST DEFENDANT** **SELINA CHEYECH LOMUR…………………………. 2ND DEFENDANT** **RULING** 1. By the Chamber Summons dated 7/3/2025, the applicant, **Selina Cheyech Lomur** seeks the following orders; 2. Spent; 3. That the court’s judgment scheduled for 12/3/2025 be stayed and or suspended pending the hearing and determination of this application; 4. THAT the applicant be joined or added as a party (2nd defendant) to this suit and upon such joinder, be granted leave to file her papers and participate in the hearing of this suit. 5. The application is premised on the grounds found in the body of the application, the applicant’s supporting affidavit dated 7/3/2025 and a further affidavit dated 14/5/2026. 6. The applicant avers that the plaintiff is her co-wife whereas the defendant is her husband; 7. That the defendant applied for and was allocated the subject land by the then County Council of Pokot and paid the rents as per annextures SCL (2 a, b & c); 8. That the defendant was allocated plot No. 7 Makutano Town; 9. That when the plaintiff left the home in 1986, the plot had not been developed; 10. That upon her marriage to the defendant, she started development of the plot and the premises were later leased to tenants who pay rent to her and the defendants; that even when the plaintiff returned, she never complained about the rents; 11. That about 2018, part of the premises was demolished by the Government to make way for the road (SCL 3. a-d) that she renovated the premises (SCL 4. a-c) of which the plaintiff was aware but never raised a finger; 12. That she became aware of this suit on 5/3/2025 as she had believed that the suit only touched on parcels 4369 and 3470; 13. That the plaintiff deliberately left her out of the suit though she knows that the applicant has substantially contributed to the development of the plot; 14. That the plaintiff is not entitled to any part of the land but that it exclusively belongs to her and defendant and the court’s decision will have a direct effect on her hence the need to be enjoined to the suit as the second defendant; 15. That if the case proceeds without her, she will suffer great prejudice but if the application is allowed, the plaintiff and defendant will not suffer any prejudice; that in the event the application is not allowed, they can be compensated by way of costs. 16. In her further affidavit, the applicant deponed that the plaintiff and defendant have been separated for over thirty (30) years and that the plaintiff commenced divorce proceedings in the lower court in 2010; 17. That the plaintiff sued the defendant before different forums claiming shares and was given her shares and so was the applicant; 18. That she has no intention of delaying the case; 19. That when she married the defendant, the plaintiff and defendant had already separated and the plaintiff had left; 20. That she has seven (7) children with the defendant; 21. That she will suffer more prejudice than the plaintiff if the orders for joinder are not granted. 22. The defendant William Lomur also filed a replying affidavit dated 19/5/2026 in which he stated that the plaintiff is his first wife while the applicant is his second wife and he does not oppose the application for joinder by the applicant. 23. The plaintiff/Respondent filed a Replying Affidavit dated 14/3/2025 opposing the application. She deponed that this application is a ploy to delay the case because this case was filed on 9/4/2019, the defendant and applicant live together and the applicant is untruthful when she alleges that she was not aware of the case; 24. That this suit involves all properties acquired during the marriage between her and the defendant and that she never left the matrimonial home as alleged: 25. That the plaintiff/Respondent is the only legal wife of the defendant having wedded in church and the defendant had no capacity to marry another wife, that the applicant has no locus standi to be joined in this suit because she is a mistress; 26. That the applicant contradicts herself when she alleges that she only knew of the matter on 5/3/2025 when she later claims to have thought the matter relates only to plot 4369 and 4370. She urged the court to dismiss the application. 27. The court gave directions that the application be canvassed through written submissions and the parties’ filed their respective submissions. **Applicant’s submissions** 1. It was submitted that Order 1 Rule 10 (2) Civil Procedure Rules gives the court a wide discretion at any stage of the proceedings, to order joinder of any person who ought to have been joined or whose presence before the court is necessary in order for the court to effectively and completely adjudicate on the matter and settle all questions involved in the suit. 2. Counsel relied on the decision of **Pravin Bowry -V- John Ward & Another (2015) eKLR** as was quoted in the case of **Emfil Limited -V- Attorney General & 423 others; Maluki & 6 others (proposed defendant) ELC No.113/2015 (2024) KEELC 1274 e KLR.** The Court of Appeal in that case, considered the Ugandan case **of Deported Asian Custodian Board -V- Jaffer Brothers Ltd (1999) I EA 55 (SCU**) in which the court made a distinction between joinder of a party who ought to have been joined as a defendant and one whose presence before the court is necessary for the affectual and complete adjudication of the matter. 3. The guiding principles for joinder of a party are listed as: - 4. He must be a necessary party; 5. He must be a proper party; 6. In the case of the defendant, there must be a relief flowing from that defendant to the plaintiff; 7. The ultimate order or decree cannot be enforced without his presence in the matter; 8. His presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. 9. Counsel submitted that the plaintiff admitted that the applicant is a co-wife and reiterated the averments in the applicant’s affidavit that with the assistance of the defendant, they developed plot 7, built rental houses from which they earn rent; 10. That when in 2018 some of the structures were pulled down to pave the way for the road, she renovated the buildings with the knowledge of the plaintiffs but without her help; 11. That the plaintiff deliberately omitted her from these proceedings whereas she was aware of her interest in the property; 12. That the applicant has a direct proprietary and beneficial interest in the suit property and any determination by the court will directly affect her rights; 13. That the applicant has a right to be heard guaranteed under Article 50 of the Constitution and she should not be condemned unheard and that the applicant’s presence in this suit is necessary to avoid a multiplicity of suits. 14. Counsel concluded that the plaintiff will not suffer any prejudice if the order is granted but that the applicant will. 15. The defendant filed submissions dated 24/6/2026. He supports the application and urged that the hearing starts afresh; 16. That both the plaintiff and defendant are his wives and have both contributed to the acquisition and development of the land directly or indirectly and therefore the applicant should be enjoined to this suit and that the plaintiff will not suffer any prejudice. 17. Ms. Munialo the plaintiff’s counsel, also filed submissions dated 11/3/2025; it was submitted there is no evidence that the plaintiff ever left her marriage as alleged by the applicant, and she is still validly married and there is no evidence of separation of the plaintiff and defendant; 18. That there is no evidence that applicant got married to the defendant in 1987 as there is no proof of it; that the applicant has just been a mistress to the defendant; 19. That applicant has not demonstrated that rent from the subject plot goes to her and the defendant to the exclusion of the plaintiff; 20. That the applicant has also not tendered any evidence to prove that she contributed to the acquisition or development of any property subject to these proceedings; 21. That the applicant lacks the locus standi to bring the application. 22. Counsel relied on the case of **Gladys Nduku Nthuki -V- Letshego Kenya Ltd;Mueni Charles Maingi (Inted I P ) (2022) eKLR** in which the principles of founder of parties was discussed. Counsel urged the court to dismiss the applicant. 23. I have carefully considered the application the responses thereto, the submissions by all parties , the authorities cited and the relevant provisions of the law. 24. In my view the only issue for determination is whether the applicant ought to be joined to the instant suit as a party. 25. Joinder of parties to a suit is Governed by Order 1 of the Civil Procedure Rules. Order 1 Rule 10 (2) of the Civil Procedure Rules provides 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.”** 26. Courts have over the years considered the issue of joinder of parties and the Court of Appeal in **Pravin Bowry -V- John Ward Supra**, referred to the Ugandan case of **Deported Asians (Supra)** where the court stated as follows:- **“A clear distinction is called for between joining a party who ought to have been joined a defendant and one whose presence before the court is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. A party may be joined in a suit because the party’s presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matter…….** **For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies (on an application of a defendant) to be joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person.”** In **Meme -V- Republic (2004) I EA 124,** the High Court gave the following reasons for joinder (1) 1. **“Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;** **(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;** **(iii) Joinder to prevent a likely course of proliferated litigation. We ask ourselves the following questions:** **a) what is the intended party’s state and relevance in the proceedings and** **b) will the intended interested party suffer any prejudice if denied joinder.?”** 46. Further in the case of J**oseph Njau Kingori -V- Robert Maina Chege,** Justice. Nambuye (as she then was) stated that the guiding principles to be considered when an intending party is to be joined to a suit are as follows:- **(1) He must be a necessary party** **(2) He must be a proper party** **(3) In the case of the defendant, there must be a relief flowing from the defendant to the plaintiff.** **(4) The ultimate order or decree cannot be enforced without his presence in the matter.** **(5) His presence is necessary, the court effectively and completely adjudicate upon and settle all questions involved in the suit.** 47. The plaintiff relied on the decision of **Gladys Nduku (Supra)** where J. Odunga as he was then said **“In this case the application has been made by an intending party as either Plaintiff or Interested Party. Whereas there is nothing inherently objectionable in a person applying to be joined as an interested party in a pending suit, it is doubtful whether such a person joined as an interested party can transform the suit into one in which he becomes the principal claimant and seek substantive reliefs in the suit. In this case, it is clear that the Applicant intends to protect his rights in the suit property by contending that he was not served with the statutory notice. That in my view is a substantive claim that cannot be determined by the Applicant being joined as an interested party. As regards his joinder as a Plaintiff, as indicated above he may only be so joined by the court on own motion or by an application by either party. Nambuye, J (as she then was) in Kingori vs. Chege & 3 Others [2002] 2 KLR 243 held that:** **“…parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit. Necessary parties who ought to have been joined are parties who are necessary to the constitution of the suit without whom no decree at all can be passed. Therefore in case of a defendant two conditions must be met: (1) There must be a right to some relief against him in respect of the matter involved in the suit. (2) His presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings. A proper party is one who has a designed subsisting direct and substantive interest in the issues arising in the litigation which interest will be recognisable in the Court of law being an interest, which the Court will enforce. A person who is only indicated or commercially interested in the proceedings is not entitled to be added as a party. But a person may be added as a defendant though no relief may be claimed against him provided his presence is proper for a complete and final decision of the question involved in the suit and such a person is called a proper party as distinguished from a necessary party… Order 1 rule 10 allows the Court to add a defendant on its own motion or upon application by either party either orally or formally by summons in chambers under Order 1 rule 22. Here the party has not moved on its own but has been moved by the intending party on its own formally. The use of the words “either party” denotes that the formal move has to be made by a party already participating in the proceedings and it would mean that an intending party cannot come on his own and choose which position he wants.”** 48. In applying all the principles enumerated in the above cited decisions and the relevant law, this court takes cognizance of the fact that Order 1 Rule 10 gives it a wide discretion in joinder of parties and that discretion has to be exercised judiciously. 49. In the instant case, the applicants avers that she is the second wife of the defendant and that together with the defendant to the exclusion of the plaintiff have developed Plot No. 7 Makutano Town hence her interest therein. 50. It is not disputed that the plaintiff is the lawfully married wife of the defendant. The plaintiff exhibited a marriage certificate dated 29/5/1971. The plaintiff married the Defendant under the African Christian Marriage and Divorce Act. Section 6 of the Marriage Act recognizes the kinds of Marriages in Kenya. At Section 6 (2), a Christian, Hindu or Civil Registered marriages are all monogamous. Although the applicant alleged that the plaintiff has been separated from the defendant for thirty (30) years, the plaintiff and defendant refuted that fact in their Affidavits. There is also no evidence that the plaintiff filed a divorce case as alleged by the applicant. It therefore follows that the defendant cannot enter into another marriage during the subsistence of the marriage with the plaintiff. In the instant case whether the defendant refers to the applicant as a wife or not that does not make her a wife. 51. The applicant claims to have substantially contributed to the development of plot 7. The defendant to the contrary states that both the plaintiff and applicant have contributed to the development of the said plot. However, from the documents annexed by the applicant in her affidavit, they are all in the defendant’s names. The Allotment letter annexed as SCL 2(a) is issued to William Lomur. Receipts SCL 2 (b) & (c) in respect to the plot 7 are in the names of William Lomur the defendant; the contract (Mapatano) marked SCL 4(a) is made by the defendant. Selina, the applicant is only a witness in the agreement. The same applies to the agreement SCL 4 (c). There is no evidence that the subject plot belongs to the applicant or that she has contributed to the development. 52. The applicant also urged that they have built rental houses on the plot from which they receive rent for their upkeep and if not joined to the suit, she will suffer substantially. However, no evidence was availed to demonstrate that there were any rental houses on the plot from which rents are earned. 53. I find that the applicant has failed to demonstrate that she is a proper, or necessary party to the suit to warrant the orders sought. 54. The plaintiff filed this suit as the wife of the defendant, through which she sought declaratory orders, that the suit property is Matrimonial Property. As matters stand, the applicant is not a wife recognized in law to be joined to the suit. If indeed the applicant contributed to the development of the suit plot, she can only claim through the defendant who is properly sued as the husband of the plaintiff. As regards the subject land, no relief can flow from the applicant to the plaintiff because the applicant does not own the land nor has she proved her interest therein. 56. As was held in the **Kengen Case**, parties cannot be added to a suit so as to introduce new causes of action or to alter the nature of the suit. Adding the applicant to this suit would result in introducing a new cause of action. 57. The upshot is that the applicant has not met the threshold of a necessary or proper party to be joined to this suit as a defendant or otherwise. The application is hereby dismissed with costs to the plaintiff/Respondent **Dated, signed and delivered in Kapenguria this 29th day of July, 2026** **HON. R.P.V. WENDOH** **JUDGE.** **Ruling delivered In the presence of :-** Plaintiff/Respondent – Ms. Wanyonyi Applicant – Ms. Chebii Court Assistants – Juma/Hellen