https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5100

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT HOMA BAY** **ELC NO. E004 OF 2022** JOHN OWUORE OKOYO..................................PLAINTIFF/APPLICANT **VERSUS** DOMINIC OWINO GUTI & 8 OTHERS..............................................DEFENDANTS/RESPONDENTS **AND** EDITH KICHE....................................INTENDED INTERESTED PARTY **RULING** 1. Before this Court is the Notice of Motion dated **16th October 2025** brought by the Plaintiff/Applicant seeking the following substantive orders: 1. That the Intended Interested Party, **Edith Kiche**, be enjoined in these proceedings as an Interested Party. 2. That any other party in active occupation, use and/or possession of, or claiming any part or subsequent subdivisions of **Land Parcel No. West Kasipul/Konyango Kokal/658**, be granted leave to join these proceedings. 3. That notice be issued through the Assistant Chief to any person who may be affected by the orders arising from this dispute involving Land Parcel No. West Kasipul/Konyango Kokal/658 and its subsequent subdivisions. **Applicant's Case** 1. The application is supported by the grounds set out on its face and the supporting affidavit. The Applicant avers that his late father was the registered proprietor of Land Parcel No. **West Kasipul/Konyango Kokal/658**. 2. He contends that in his absence and without lawful authority, his uncle, the 1st Defendant, fraudulently commenced succession proceedings, subdivided the suit property and transferred portions thereof to various persons. 3. According to the Applicant, the Defendants sued were identified from official land records. However, he has since discovered that there are persons in occupation or possession of portions of the suit land whose interests are not reflected in the Land Registry records. 4. The Applicant further states that although the 9th Defendant remains the registered proprietor of one of the resultant parcels, he is deceased and the land is currently occupied by the Intended Interested Party, Edith Kiche. Consequently, any orders affecting title to that parcel are likely to affect her occupation and interests. He therefore urges the Court to enjoin her to enable the Court effectually and completely determine all issues in controversy. **Respondents' Case** 1. The Respondents opposed the application through a Replying Affidavit sworn on **5th November 2025**. 2. They submit that the estate of the deceased registered proprietor has not been sued in accordance with the law. They argue that proceedings against a deceased person are incompetent because a deceased person lacks legal capacity to sue or be sued. 3. The Respondents further contend that any proceedings concerning the estate of a deceased person can only be maintained against a duly appointed legal representative holding a Grant of Probate or Letters of Administration as provided under the Law of Succession Act. 4. It is their position that the Intended Interested Party has not demonstrated any recognizable legal interest capable of justifying her joinder and that her inclusion cannot cure the fundamental defect of having sued a deceased person instead of his legal representative. 5. The Respondents therefore pray that the application be dismissed with costs. **Analysis and Determination** 1. Having considered the Motion, affidavits and rival submissions, the issue falling for determination is: **Whether the Applicant has established a proper basis for the joinder of the Intended Interested Party and other persons claiming interests in the suit property.** 1. The principles governing joinder of parties are found under **Order 1 Rule 10(2) of the Civil Procedure Rules**, which provides: ***"The court may at any stage of the proceedings... order 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 adjudicate upon and settle all questions involved in the suit, be added."*** 1. The Supreme Court in **Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR** laid down the principles governing joinder of an interested party and held that an intended interested party must demonstrate: 2. a clearly identifiable stake or legal interest in the proceedings; 3. that such interest will be affected by the decision of the Court; and 4. that the intended party's participation will assist the Court in effectually determining the issues before it. 5. Similarly, in **Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 7 Others [2014] eKLR**, the Supreme Court observed that joinder is intended to ensure that all persons whose rights are likely to be affected by the outcome of litigation are accorded an opportunity to be heard, thereby safeguarding the constitutional right to a fair hearing under Article 50 of the Constitution. 6. From the material placed before this Court, the Applicant alleges that the Intended Interested Party is in actual occupation of land forming part of the subdivisions arising from the original parcel. It is not disputed that the Applicant seeks cancellation of titles allegedly arising from fraudulent succession and subsequent transfers. 7. If the orders sought in the main suit are ultimately granted, the proprietary and possessory interests of persons occupying the affected parcels may inevitably be affected. In such circumstances, principles of natural justice demand that such persons be afforded an opportunity to be heard before adverse orders are made against them. 8. The Court therefore finds that the Intended Interested Party has a sufficient identifiable interest in the proceedings to justify her participation. 9. The Respondents' principal objection is that the registered proprietor of the parcel occupied by the Intended Interested Party is deceased and that the estate has not been sued through a legal representative. 10. It is indeed settled law that proceedings instituted against a deceased person are incompetent because a deceased person lacks legal personality. 11. In **Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR**, the Court of Appeal held that only a duly appointed legal representative has capacity to institute or defend proceedings on behalf of a deceased person's estate. 12. Likewise, in **Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another [1987] eKLR**, the Court of Appeal emphasized that no person may litigate on behalf of a deceased person's estate without first obtaining a grant of representation. 13. Consequently, this Court agrees with the Respondents that any substantive relief directed against the estate of the deceased proprietor can only be pursued against a duly appointed legal representative. 14. However, that objection does not answer the issue presently before the Court. The present application concerns joinder of a person alleged to be in occupation of the suit property and whose interests may be affected by the eventual determination of the dispute. 15. Joinder of the Intended Interested Party neither validates nor cures any defect relating to proceedings against the estate of a deceased person. Those are distinct legal questions. The issue of whether the estate of the deceased has been properly sued remains available for determination at the appropriate stage and may be raised by way of preliminary objection or any other appropriate application. 16. The Court is satisfied that the Applicant has demonstrated sufficient cause for the joinder of the Intended Interested Party. 17. With respect to the prayer seeking leave for all persons in occupation or possession of subdivisions of the original parcel to join these proceedings, the Court notes that the Applicant alleges that several persons whose identities are presently unknown are occupying portions of the disputed land. 18. The Court is empowered under **Order 1 Rule 10** of the Civil Procedure Rules to direct joinder of all necessary parties to facilitate complete adjudication of the dispute. 19. In land disputes involving multiple subdivisions and numerous occupants, it is often desirable that all affected persons be accorded notice to safeguard their constitutional right to be heard and to avoid multiplicity of proceedings. 20. The Court is therefore persuaded that issuance of public notice through the local administration is appropriate in the circumstances of this case. **Disposition** 1. Consequently, the Notice of Motion dated **16th October 2025** is **partly merited** and is allowed on the following terms: 1. **Edith Kiche** is hereby enjoined in these proceedings as an Interested Party. 2. The Interested party is granted Fourteen(14) days to file and serve her pleading and all documents upon the Plaintiff and the Defendants 3. Leave is granted to any person who is in occupation, possession, use of, or claims any interest in the subdivisions arising from **Land Parcel No. West Kasipul/Konyango Kokal/658** to apply for joinder in these proceedings within **thirty (30) days** from the date of publication of the notice. 4. The Assistant Chief of the area where the suit property is situated shall facilitate publication and dissemination of notice of these proceedings to persons occupying or claiming interests in the subdivisions of the original parcel. 5. For avoidance of doubt, this ruling does not determine nor cure the question whether the estate of the deceased registered proprietor has been properly sued. The issue of legal capacity and representation of the deceased's estate remains open for determination upon an appropriate application. 6. Costs of the application shall abide the outcome of the main suit. 7. The matter shall be mentioned on14th September ,2026 for compliance and further orders. 8. It is so ordered. RULING DATED AND DELIVERED AT HOMA BAY THIS 31ST DAY OF JULY 2025. **In the presence;** * + - 1. Achillah for the plaintiff – Present 2. Bunde for the Respondent – Absent 3. Court Assistant; Awino. JUSTICE J.W WANYONYI – JUDGE 31/7/2026