https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4805

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT KILGORIS** **ELCL (OS) E015 OF 2024** **JACOB OLE SILE ……………..………………...…...…………………....….…1ST APPLICANT** **NDISHA BENJAMIN ARUSAT…………………………..……………………..2ND APPLICANT** **VERSUS** **JASON ONDORA ONSEMBE…...………..………….……………………...1ST RESPONDENT** **THE LAND REGISTRAR KILGORIS SUB COUNTY ………………………….2ND RESPONDENT** **RULING** 1. Coming up for determination is the Application dated 3rd March 2026 filed by a proposed Interested Party/Applicant – Crasoft Systems Limited seeking joinder in this suit as an Interested Party. 2. The grounds in support of the application being *interalia*; 3. That the Applicant has a recognizable legal interest in the suit property (Transmara/Moyoi/343) having purchased the same from the original owner Jason Ondora Onsembe, hence its presence is necessary to enable the court to effectually and conclusively settle all questions arising from the suit regarding the ownership and use of the suit land, so as to avoid multiplicity of suit. 4. Application is brought in good faith and at earliest opportunity. 5. The Application is supported by the supporting affidavit of Reuben Kiptoo Sigei who reiterates the grounds in support of the application and has annexed a copy of an Agreement for sale in respect of the suit property, Transmara/Moyoi/343, and reiterates that he is a bonafide purchaser for value, and intends to protect his proprietary interests and assist the court reach a fair determination. 6. The 1st Plaintiff filed a Replying affidavit in opposition to the application, in a nutshell the application is opposed on the grounds *interalia*; 7. That the sale to the interested party does not affect its rights to pursue an adverse possession claim. 8. That the suit property could not be disposed off during pendency of this suit even though the succession court had resolved the succession issue. 9. That the interested party is not a bonafide purchaser for value without notice, as the Applicant current title holder and not Mr. Ondora that the title belonged to the 2nd Plaintiff and 1st Plaintiff and court searches would have revealed existence of court cases, rendering the Applicant not to be a bonafide purchaser. 10. That the adverse possession claim is pending before court, and 11. That the joinder is completely unnecessary for the effectual determination of this matter, in that the purchaser/interested party only paid a deposit but did sale did not progress to completion and any cause of action they may have completely lies against Mr. Onsembe who is unable to complete. 12. That there is no plausible and/or legitimate explanation as to why the interested party has not pursued remedies prescribed in their sale agreement, the joinder is meant to circumvent the claim of adverse possession and the existing status quo orders. 13. The application is opposed by the 2nd Plaintiff/Respondent who equally has filed a Replying affidavit deponing *interalia*; - 14. That the suit parcel had been subdivided and did not exist at the time the said Agreement for sale was entered into on 22.11.2024. 15. That the purchase occurred after the Ruling of 15.11.2024 which revoked the Grant that had been issued to one Douglas Onsembe Ondora. 16. At the time of the Agreement for sale, a Memorandum of Appeal dated 16.11.2024, by the 1st and 2nd Plaintiff/Respondents herein as regards the Ruling above had already been lodged. 17. That the Applicant has neither possession nor title to the property and there is no record showing that the entire purchase price of Kshs.42,000,000/= was paid so as to make the interested party a Bonafide purchaser. 18. That the Applicant has remedies against the Defendant/Respondent who was the vendor, and has not claim against the Plaintiff/Respondent who are entitled to adverse possession 19. The application proceeded by way of written submissions. 20. The Applicant submitted on the threshold for joinder as an interested party, it cited order 1 Rule (10) w of the Civil Procedure Rules as well as the decision in the case of Trusted Society of Human Rights Alliance Vs. Mumo Matemu and 5 Others 2014 eKLR, where an interested party was defined as 21. A party that has a stake in the proceedings. 22. One who will be affected by the outcome and 23. One whose interests will not be adequately represented by the existing and has also cited the case of Francis Karioko Muruatetu and Another Vs. Republic which set out the tests to be considered including the issue of proximate and legally protectable interest, as stated in Methodist Church of Kenya Vs. Mohammed Fugicha and 3 Others. 24. In relation to this case, the Applicant submits that it is a bonafide purchaser for value, and therefore has a direct and proximate interest whose claim would be affected directly and completely by the outcome of the case. 25. That the claim of adverse possession must be strictly proved. 26. That the joinder will prevent inconsistent and ineffectual orders. 27. The 1st Plaintiff filed submissions and framed, the following issues for determination 28. On issue 1, the Respondent submitted that no recognizable legal interest has been demonstrated, no evidence of full payment, payment of stamp duty and completion has been tendered. No title conferring proprietary interest was produced. 29. That the vendor had no good title to pass to the purchaser, as suit property had been subdivided. 30. That there was no proof of actual sale hence no proprietary interest in the name of the interested parties. 31. The other limbs of the submission related to the merits of the interested parties claim as well as the main suit and are not relevant in this joinder application and the court shall not deal with them. **Issues for Determination** 1. Arising from the application as well as the Replying affidavits and the submissions, and upon consideration of the law; the court frames the following as issues for determination; 2. Whether or not the application meets the criteria for joinder of interested party. 3. Who bears the costs of the application. **Analysis and Determination** 1. As rightly submitted by counsel for the Interested party/Applicants the test for joinder of an interested party was set out by the Supreme court in its decision in the case of Muruatetu and Another Vs. Republic; Kenya National Commission on Human Rights and 2 Others (Interested parties); Death Penalty Project (intended Amicus curial) petition 15 and 19 of 2015 (consolidated 2016 KESC 12 KLR, where at paragraph 37, the court observed as follows; ***“From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined on proceedings as an interested party.*** ***One must move the court by way of a formal application. Enjoinment is not a right but is at the discretion of the court; hence sufficient grounds must be laid before the court on the basis of the following elements.*** ***The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough to stand apart from anything that is merely peripheral. The prejudice to be suffered by the interested party in case of non-joinder must all be demonstrated to the satisfaction of the court. It must be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the court and demonstrate the relevance of the submissions…that the same are not a mere replication of the submissions of other parties…”*** 1. Turning to the present application. The Applicant/Proposed Interested party has averred in its application that it purchased the suit property at a cost of Kshs.42,000,000/= hence it is a Bonafide purchaser for value by virtue. 2. The Respondents state that the sale transaction was not completed and it was done during the pendency of court proceedings, hence the Applicant has no identifiable and protectable claim in the suit property, so as to seek joinder. 3. Has the Applicant demonstrated a stake in the present case? While the Applicant has demonstrated purchase of the suit property, the said suit property has not been transferred to it due to the orders of status quo issued in this matter, the question thus arising is whether the interest demonstrated by the Applicant is proximate to the case or it is remote. 4. Black Law’s dictionary 11th edition defines proximate cause: ***“1. A cause that is legally sufficient to result in liability; an act or Omission that is considered in law to result in consequence so that liability can be imposed on the actor.*** ***2. A cause that directly produces an event and without which the event would not have occurred…Also term (in both senses) direct cause; direct and proximate cause.”*** 1. While Remote cause, is defined by the same edition of Blacks Law dictionary as ***“A cause that does not necessarily or immediately produce an event or injury....a wrongful cause that is too far removed to constitute the basis of a legal claim, as by reason of an independent intervening circumstances.”*** 1. Applying the above definitions to the facts of the application before court, the court finds that the interests demonstrated by the Applicant in this application to be a proximate interest for reasons that; 2. The proposed interested party has demonstrated interest of ownership over the suit property by way of the Agreement for sale. 3. Since the Plaintiff’s claim is on adverse possession, the outcome at trial will have a bearing on the beneficial interest and/or ownership of the interested party. 4. From the above analysis, the Applicant would thus suffer prejudice, once the court makes its finding after trial, on the ownership, resulting into multiplicity of suit. 5. The answer to issue No. 1 is that the court finds that the applicant has met the threshold for joinder of the Applicant as an interested party having demonstrated proximate cause and prejudice to be suffered and the application is merited and it is allowed with costs in the cause. Dated at Kilgoris this 27th day of July, 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Gilbert Ms. Owino and Mr. Kiprono for 1st and 2nd Plaintiffs Ms. Mukhundi h/b for Mr. Sonoiya for Applicant Ms. Ochola h/b for M.s Mongare for 1st Defendant