https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4272

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. E072 OF 2025** **WALTER OBONYO OGOLA ………………PLAINTIFF/RESPONDENT** **VERSUS** **JAMES WAFULA WANGIRA ..…...1ST DEFENDANT/RESPONDENT** **JOHANNES BOY OKOBA ….........2ND DEFENDANT/RESPONDENT** **AND** **MARTIN CHEMONGES SIWA………..PROPOSED 1ST INTERESTED PARTY/ APPLICANT** **BRUCE MARK KIPROP KIBOGY……PROPOSED 2ND INTERESTED PARTY/APPLICANT** **SAMWEL KIPKORIR BARMASAI** (Suing on behalf of Barmasai Kibware) **...................PROPOSED 3RD INTERESTED PARTY/APPLICANT** **RULING:** 1. The ruling herein is in respect to two Notice of motion Applications dated 14th January, 2026 and 31st January, 2026 respectively. 2. The 1st and 2nd Proposed Interested Parties/Applicants filed a Notice of Motion Application dated 14th January, 2026 seeking the following orders: - * 1. Spent. 2. Spent 3. That the honourable court be pleased to stay the execution orders issued on the 11/12/2025 to the effect that the defendants/respondents by themselves, their agents and/or servants are restrained from accessing, use, waste and/or trespassing on Land Parcel No. Uasin Gishu/Moiben Scheme/28 pending the hearing and determination of the main suit. 4. That the 1st and 2nd applicants be enjoined as 1st and 2nd interested parties to this suit respectively. 5. That the honourable court be pleased to set aside, review and/or discharge the temporary orders on injunction issued on the 11/12/2025 to the effect that the defendant/respondent by themselves, their agents and/or servants are restrained from accessing, use, waste and/or trespassing on Land Parcel No. Uasin Gishu/Moiben Scheme/28 pending the hearing and determination of the main suit. 6. That the applicants be further granted leave by the court to file and serve 1st and 2nd interested party statement of defence and counter-claim in the matter. 7. The costs of this application be provided for. 3. The application is premised on 20 grounds on the face thereof and on the proposed interested parties/applicants’ joint Supporting Affidavit sworn on even date. 4. The applicants deponed that the defendants sold to them a portion of land in the parcel number Uasin Gishu/Moiben Scheme/3 measuring 49 acres. That pursuant to the sale, they took vacant possession of the portion thereof, put up their homesteads and other developments. That however, the defendants refused and failed to transfer the said land to them. 5. Consequently, this led the 1st applicant to file a suit vide proceedings known as Eldoret CMELC No. 73 of 2020, seeking to compel the defendants to transfer to him a portion of 28 acres out of parcel number Uasin Gishu/Moiben Scheme/3. That the said case was heard and determined on 21/12/2023, whereupon it was decreed that the 1st applicant was entitled to the 28 acres he was in occupation of. 6. That the defendant being aggrieved with the said decision, lodged an appeal vide Eldoret ELC Appeal No. E015 of 2024 and further sought an order of stay of execution which was issued on 28/10/2024. It is the applicants’ claim that despite there being an order for stay of execution, on 19/11/2024 the defendants herein (and appellants in the appeal case) in total disregard of the stay orders barring any dealing on the parcel of land number Uasin Gishu/ Moiben Scheme/3, made an application to the land control board for subdivision of the said land into 2 portions measuring 18.2Ha and 0.8Ha respectively. 7. That the application for subdivision was allowed and new numbers generated. That one of the two new numbers created on subdivision was the suit land herein, Uasin Gishu/Moiben Scheme/28 measuring 18.14Ha, which was subsequently sold, transferred and registered in the name of the plaintiff. They dismissed the said transfer and registration as being tainted with illegalities and irregularities. 8. However, despite the said sale and registration of the suit land in the name of the plaintiff, it is the applicants’ contention that they have remained in possession and use of the said portion of land. It is therefore their claim that the orders of injunction issued by this court on 16/12/2025 amounts to summary orders of eviction despite their possession and use of the same over the years. 9. The proposed interested parties thus aver that in view of the possession, occupation and use of the suit land, arising from the purchase of parcel of land number Uasin Gishu/Moiben/3 and which has since been subdivided to give rise to the suit land herein, they have demonstrated that they have sufficient interest in the subject matter in dispute in the present proceedings hence the need to be joined as parties herein to enable them fully articulate their claim before an adverse decision is made against their proprietary interests. 10. They therefore maintained that it is proper and in the interest of justice that they be joined as parties in the present proceedings. Further, they did state that they have a prima facie case against the plaintiff and the defendants herein with high chances of success. They thus urged the court to allow their application and grant the orders sought. 11. The application dated 14.01.2026 was opposed. The plaintiff/respondent filed a Replying Affidavit dated 12.02.2026 in response to the proposed interested parties/applicants’ averments. 12. It was his claim that he is the registered and absolute proprietor of the parcel of land number Uasin Gishu/Moiben Scheme/28 and a title deed issued to that effect, which vests in him the absolute ownership as well as the rights and privileges thereto. 13. In response to the applicants’ claim of purchase and ownership of the suit land, he dismissed the alleged transaction as being unenforceable and incapable of conferring any interest in the suit land for the reason that the alleged sale agreement was never completed. Further, that the failure to obtain the Land Control Board consent rendered the transaction void for all purposes. 14. It is therefore his claim that the applicants’ continued cultivation and occupation of the suit land is illegal, unlawful and amounts to trespass. 15. He thus maintained that the applicants have failed to meet the threshold for joinder as interested parties. That they have not demonstrated any legal or registrable interest in the suit property capable of defeating his rights as the registered proprietor of the suit land herein. 16. With regard to the order for review sought, it was the plaintiff/respondent’s claim that the applicants have not met the statutory requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. That they have not demonstrated any discovery of a new and important matter, any mistake or error apparent on the face of the record or any other sufficient reason. 17. It is his contention that the orders sought to be reviewed were lawful, regular and based on the material placed before court. In the end, he dismissed the application as being misconceived, frivolous, incompetent and an abuse of the court process and urged the court to dismiss the application with costs. 18. The defendants/respondents also opposed the application dated 14.01.2026 and filed a Grounds of Opposition dated 11.03.2026 in response thereto. 19. It is their claim that the application dated 14.01.2026 does not meet the legal threshold set by law for joinder of an interested party in ongoing proceedings. 20. It is also their claim that the applicants/proposed interested parties have relied on matters touching on parcel no. L.R. No. Uasin Gishu/Moiben Scheme/3, which no longer exists. They further contend that the interest of a registered proprietor far outweighs the interests of an unregistered purchaser. They therefore urged the court to dismiss the application dated 14.01.2026 with costs. 21. The 1st and 2nd applicants filed a Further Affidavit dated 16/2/2026 in response to the plaintiff/respondent’s replying affidavit wherein they reiterated their claim as outlined in their joint supporting affidavit. 22. The second application dated 31.01.2026 is filed by the 3rd Proposed Interested Party/applicant. The 3rd Proposed Interested Party/Applicant in Notice of Motion Application dated 31st January, 2026 wherein he sought the following orders: - 23. Spent 24. That the honourable court be pleased to grant leave to the applicant, Samuel Barmasi Kibware (Suing on behalf of Barmasi Kibware), to be joined in these proceedings as an Interested Party to protect his interests in the suit property. 25. Spent 26. That pending the hearing and determination of this suit, a temporary injunction be and is hereby issued restraining the Respondents by themselves, their agents, servants, persons acting under their instructions or persons claiming under them from trespassing, invading, Ploughing, destroying fences, cutting trees, constructing structures, Cultivating, selling, completing the sale, sub-dividing, altering boundaries, encroaching, surveying, affixing beacons, digging trenches, or acting in whatever manner that affects the substratum of the suit herein or in any manner whatsoever interfering with the suit parcel being 44-acre portion of the land parcel known as UasinGishu/Moiben Scheme/3 and/or any resultant subdivision including UASIN GISHU/MOIBEN SCHEME/28. 27. Spent 28. That pending the hearing and determination of this suit, a temporary injunction be and is hereby issued restraining the Respondents by themselves, their agents, servants, persons acting under their instructions or persons claiming under them from trespassing, invading, Ploughing, destroying fences, cutting trees, constructing structures, Cultivating, selling, completing the sale, sub-dividing, altering boundaries, encroaching, surveying, affixing beacons, digging trenches, or acting in whatever manner that affects the substratum of the suit herein or in any manner whatsoever interfering with the suit parcel being 44-acre portion of the land parcel known as UasinGishu/Moiben Scheme/3 and/or any resultant subdivision including UASIN GISHU/MOIBEN SCHEME/28. 29. That the OCS Soy Police Station to ensure compliance with the orders issued by this court. 30. That this honourable court be pleased to issue such further orders as shall be necessary for the ends of justice to be met. 31. That the costs of this application abide the outcome of the suit. 32. The application is premised on 22 grounds on the face thereof and on the 3rd proposed interested party/applicant’s Supporting Affidavit sworn on even date and on behalf of his father. 33. It is deponed that the applicant has been in occupation of a portion of land parcel number Uasin Gishu/Moiben Scheme/3 measuring 19.0Ha (approx. 46.95 acres) since the year 1993 to date. That the parcel was originally registered in the name of Jackton Oloo Wangira. That however, in 2016 the said parcel of land was registered in the names of Mary Nabwire Bwire and James Wafula Wangira being the Administrators of the Estate of the late Jackton Oloo Wangira pursuant to Busia Succession Cause Number 100 of 2016. 34. It is his contention that having been in occupation since the year 1993, the rights of the registered proprietor of the suit land were extinguished as at 2005 and therefore the said portion was not available for succession. He deponed on his occupation and use of the portion of the suit land in support of his averment on adverse possession and annexed various bundles of photographs in support of his assertions. 35. He further explained that he filed a suit against the defendants herein and/or the administrators of the estate of the late Jackton Oloo Wangira vide ELDORET ELCOS E011 of 2025 Samuel Kipkorir Barmasai Versus Mary Nabwire Bwire and James Wafula Wangira seeking to be declared the owner of the 44-acre portion of the land parcel known as Uasin Gishu/Moiben Scheme/3 by way of adverse possession. That he also filed an application for injunction which was subsequently allowed and an order of temporary injunction was issued on 19/5/2025 against the defendants in the suit barring them from interfering with his occupation and use of the land pending the hearing and determination of the suit. 36. It is therefore his contention that the effect of the orders of this court of temporary injunction issued on 11/12/2025 is to evict him from the portion of land in his possession and in contravention to the orders of temporary injunction issued in ELDORET ELCOS E011 of 2025. Thus it is his claim that unless the orders sought herein are granted, he is apprehensive that the plaintiff/respondent may proceed to forcefully evict him, alienate or charge the parcel of land to unsuspecting third parties and as a result, defeat his claim over the property. 37. In conclusion, he urged the court to allow his application as prayed in the interest of justice. 38. The application dated 31.01.2026 by the 3rd proposed interested party was opposed. 39. The plaintiff/respondent filed a replying affidavit dated 12.02.2026 in response to the averments made by the 3rd applicant. 40. He averred that he is the absolute and lawful registered owner of the suit land and a title deed issued to that effect. 41. It was his claim that the 3rd applicant lacks the requisite locus standi to file the present suit on behalf of his father as he had not annexed any Power of Attorney or court order appointing him as the legal representative or pursuant to the provisions of Order 9 Rule 1 and 2 of the Civil Procedure Rules. That in the absence of the said valid power of attorney or other lawful authority, the 3rd applicant’s application is fatally defective and incompetent. 42. He further averred that the 3rd applicant’s claim under adverse possession is misconceived, incompetent and legally unsustainable. That time in respect to the claim on adverse possession only starts to run where there is a legally recognized proprietor. 43. In response to the prayer for joinder, he deponed that the 3rd applicant has failed to meet the threshold for joinder as an interested party. He therefore urged the court to dismiss the application in the interest of justice. 44. The defendants/respondents also filed a Grounds of Opposition dated 04.05.2026 in response to the application dated 31.01.2026. 45. They dismissed the application as being frivolous, unmeritorious and failed to meet the requisite provisions of law. It is their claim that the 3rd applicant did not in any way transact with the defendants in respect to the suit land and cannot therefore raise any triable claim on the said parcel of land. 46. The defendants/respondents did further contend that the 3rd applicant’s claim under adverse possession has not crystallized and is therefore premature for the reason that the title in respect to parcel number Uasin Gishu/Moiben Scheme/28 was obtained on 14/3/2025. 47. It is further pleaded that the defendants upon selling the suit land to the plaintiff, their proprietary interests were extinguished and as such, an injunction cannot issue against them. They therefore urged the court to dismiss the application dated 31.01.2026 with costs. 48. The 3rd applicant filed a Further Affidavit in response to plaintiff/respondent’s replying affidavit. He maintained that he is vested with the requisite capacity and legal authority to represent his father and reiterated the claim as presented in his supporting affidavit. 49. Both applications were canvassed by way of written submissions. All parties filed and exchanged their rival submissions together with authorities, which I have read and duly considered. **Analysis and Determination:** 1. I have carefully considered both Applications and the grounds therein, the Supporting and Further Affidavits and the annexures thereto filed in support of each application, the replying affidavits in response to the 2 applications by the plaintiff/respondent, the Grounds of Opposition by the defendants/respondents in response to the 2 applications as well as the rival submissions in totality. 2. However, this court has noted that there is another application dated 31.01.2026 by the 1st and 2nd applicants seeking orders of temporary injunction. No directions were taken with regard to the said application and the plaintiff and defendants are therefore yet to respond to the same. Therefore, prayer no. 4 as repeated in prayer no. 6 in the application dated 31.01.2026 by the 3rd applicant, seeking similar orders of injunction will be held in abeyance and will be determined together with the 1st and 2nd applicant’s application dated 31.01.2026 seeking similar orders of temporary injunction upon compliance by parties. 3. It is therefore my considered view that the issues arising for determination are as follows: - 4. *Whether the 3 applicants/proposed interested parties herein have satisfied the criteria for joinder as interested parties in the present proceedings.* 5. *Whether the 1st and 2nd applicants have sufficiently proved their claim to warrant the setting aside of the orders of temporary injunction issued on 11.12.2025 by this court* 6. *Who shall bear the costs of the present Application.* 7. The above issues for determination having been duly identified, I will now proceed to discuss the same as hereunder. 8. ***Whether the 3 applicants/proposed interested parties herein have satisfied the criteria for joinder as interested parties in the present proceedings;*** 9. The 3 applicants herein are all seeking to be joined as interested parties in the present proceedings. This issue therefore seeks to determine whether they have met the criteria to be joined as such. 10. Order 1 Rule 10(2) allows the joinder of a party to the proceedings before a court. The order provides as follows: - ***(2) 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. (emphasis added)*** 1. From the above provision, it is clear that a party may be joined in a suit at any stage of the proceedings before judgment is pronounced provided that the presence of the said party is necessary to enable the court to effectually ad completely adjudicate upon and settle all the questions involved in the suit conclusively. 2. It is not in dispute that both the 1st & 2nd applicants as well as the 3rd applicants are not the registered proprietors of the suit land neither do they hold title in respect to the parcel of land L.R. No. Uasin Gishu/Moiben Scheme/3. However, all the three are claiming beneficial, bonafide and actual ownership rights of the suit land herein, either by way of sale and/or by dint of the doctrine adverse possession. 3. It is also common ground that the applicants are and have been in possession of various portions of the parcel of land L.R. No. Uasin Gishu/Moiben Scheme/3. From the material presented before this court, it is evident that the suit land herein L.R. No. Uasin Gishu/Moiben Scheme/28 was a subdivision of L.R. No. Uasin Gishu/Moiben Scheme/3. The 1st and 2nd applicants annexed a copy of the mutation form dated 17/12/2024 in support of the said subdivision claims and which I have had an opportunity to peruse and confirm the said averment. In essence therefore, the applicants are in possession of the suit land. 4. Even though the plaintiff/respondent has denied the said ownership claims, he has not denied the occupation and use of the suit land by the applicants. As a matter of fact, in paragraph 10 of his replying affidavit in response to the application dated 14.01.2026, he has admitted that the applicants are in possession and occupation of the suit land herein. 5. Further, from the material presented by the 3rd applicant, it is clear that he has been in occupation and use of the parcel of land L.R. No. Uasin Gishu/Moiben Scheme/3. 6. In the case of ***Technomatic Limited T/A Promopack Company vs Kenya Wine Agencies Limited & Another (2014) eKLR*** the court while dealing with the issue of joinder stated as follows: - ***“It is clear that the guiding principles when an intending party is to be joined are as follows: he must be a necessary party, he must be a proper party, in the case of a defendant, there must be a relief flowing from that defendant to the plaintiff, the ultimate order or decree cannot be enforced without his presence in the matter, his presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit.”*** 1. The question that therefore follows is whether the applicants have satisfactorily met the criteria/threshold for joinder as outlined in the decision above. 2. I have carefully perused the plaint dated 25th July, 2025 and among the orders sought therein are orders of permanent injunction and mandatory injunction and/or eviction. If allowed, the effect of the said orders will be to order the eviction of all persons in possession, occupation and use of any portion thereof of the suit land, including the applicants herein. 3. Unless the applicants herein are joined in the present proceedings, the effect of the orders sought in the plaint if allowed, would amount to condemning them unheard in total violation of their rights to a fair hearing as enshrined in the Constitution and the Fair Administrative Actions Act. 4. In view of the foregoing, this court finds that the applicants have satisfied the criteria for the grant of an order for joinder as interested parties in the proceedings herein. The proposed interested parties/applicants are necessary parties in the present proceedings to enable the court determine all the issues and questions arising effectively and substantively. 5. Consequently, the prayer for joinder is merited and is hereby allowed. 6. ***Whether the 1st and 2nd applicants have sufficiently proved their claim to warrant the setting aside of the orders of temporary injunction issued on 11.12.2025 by this court;*** 7. The second issue herein seeks to determine whether the orders of this court issued on 11.12.2025 should be set aside in light of the claims made by the applicants herein. 8. The remedy for review and/or setting aside is prescribed under section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules which empowers the court and outlines the statutory provisions for the grant of orders of review, establishing the jurisdiction and limits of review. 9. Order 45 rule 1 of the Civil Procedure Rules provides as follows:- ***“Any person considering himself aggrieved:*** * + 1. ***by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or*** 2. ***by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgement to the court which passed the decree or made the order without unreasonable delay.” (emphasis mine)*** 1. The applicants herein have premised their ground for review on an error apparent on the face of the record, which they have attributed to material non-disclosure of all the relevant facts touching on the subject matter in this case. 2. Save for the mere denials seen in their Grounds of Opposition and Replying Affidavits, the respondents herein have not controverted any of the documentary evidence produced by the applicants. In particular, the stay orders issued in Eldoret ELC case No. E015 of 2024 dated 28/10/2024, the decree from CMELC No. 73 of 2020, the Mutation Form dated 17/12/2024 in support of the subdivision or the ruling on temporary injunction dated 19.05.2025 issued by my brother, Justice E.M. Washe in the proceedings known as ELCOS E011 of 2025. 3. The question that therefore follows is whether the grounds stated hereinabove by the applicants amount to an error apparent on the face of the record to warrant the setting aside and/or review of the order dated and issued on 11.12.2025. My answer to the above is in the affirmative. 4. Thus taking totality of the foregoing and the rival claims presented herein, this court finds that the present application is merited. There is need to set aside my earlier order for temporary injunction issued on 11.12.2025. **Who shall bear the costs of the present Application;** 1. The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act, unless the court is satisfied otherwise. 2. However, in view of the circumstances of the present application, I will direct that costs of the application to be in the cause. 3. The upshot of the above is that the applications vide the Notice of Motion dated 14th January, 2025 and 31st January, 2026 are merited and are hereby allowed on the following terms: - 4. **Application dated 14.01.2026 is allowed in terms of prayers nos. (4), (5) and (6)** 5. **Application dated 31.01.2026 by the 3rd applicant is allowed in terms of prayer no. (2)** 6. **Costs of the present applications to be in the cause.** 7. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** this **9th day** of **JULY, 2026.** **HON. C.K. YANO** **JUDGE** **Ruling delivered in the presence of: -** Mr. Korir for 3rd Intended Interested Party. Mr. Ogutu for 1st and 2nd proposed Interested parties. Mr. Chepkwony for the Plaintiff. No appearance for Defendants. Court Assistant – Laban