https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4719

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. E058 OF 2021** **DANIEL KIPKOSGEI RONO ……………………..…..... 1ST PLAINTIFF** **RODAH JERUTO BETT ……………………............… 2ND PLAINTIFF** **VERSUS** **WILLIAM NYAMBANE …………......................….. 1ST DEFENDANT** **RICHARD KETER ……………............................. 2ND DEFENDANT** **CORNELIUS KETER …………….......................... 3RD DEFENDANT** **WILFRED OMBUI NYAMBOGA ……………........... 4TH DEFENDANT** **NELSON RUTO …………................................….. 5TH DEFENDANT** **SILVANO KOGO ……………................................ 6TH DEFENDANT** **JANET JEPTOO ……………................................ 7TH DEFENDANT** **AND** **ROSE JEPKOECH LAGAT** **ERIC STEPHEN MARITA** **JOYCE WANGARE MWANGI** **AHMED ABDI KADIR ALI** **EMMANUEL KIPLIMO KIPROP INTENDED INTERESTED** **KENNEDY KIBET RUTTO PARTIES/APPLICANTS** **DAVID SEREM KITOI** **ALLAN MWANGI GATHUNGU** **HUSSEIN SARANA** **RULING:** 1. The ruling herein was to be in respect to two Notice of Motion Applications dated 17th February, 2026 and 13th April, 2026. However, at the time of writing this ruling, there was no copy of the earlier application dated 17.02.2026 in the online filing platform, CTS or the Court file even though a response thereto and the supplementary affidavit are there. 2. Consequently, since the court has not had an opportunity to peruse the contents of the said application dated 17.02.2026, this ruling will be in respect to the application dated 13.04.2026 only and direct the applicant in the application dated 17.02.2026 to avail a copy of the same to the court by close of business today for fresh directions by the Court. 3. The Intended Interested Parties/Applicants filed a Notice of Motion Application dated 13th April, 2026 seeking the following orders: - * 1. Spent. 2. Spent. 3. That the Intended Interested Parties/Applicants be enjoined in this matter. 4. That this honourable court do hereby issue an order to review and/or set aside the judgment of this honourable court dated 5/2/2026 and vacate all consequential orders thereto. 5. That honourable court be pleased to grant leave to the Intended Interested Parties/Applicants to file and serve their defence and to defend the suit and have the same determined on merit. 6. That costs of this application be provided for. 4. The application is premised on 24 grounds on the face thereof and on the Supporting Affidavit sworn by Rose Jepkoech Lagat on even date, on her own behalf and on behalf of the other Intended Interested Parties. 5. The 1st applicant deponed that she owns a portion of the parcel of land known as Eldoret Municipality Block 15/1889 and which is affected by the judgment of this court. It is her claim that she purchased the said portion from the registered owner, Geoffrey Kipkemboi Lelei and have been in peaceful and quiet possession and occupation of the said land which she occupies with her family. 6. It is her contention that the other Intended Interested Parties are also purchasers of diverse portions of the suit property and have been in peaceful and quiet possession and occupation thereof. 7. It is their claim that they were not aware of the present proceedings or of any pending suit involving their portions of land and only learned of the instant suit after judgment had been rendered on 5/2/2026. 8. The applicants further aver that the effect of the judgment issued on 5/2/2026 whose effect is to issue an order of eviction and demolition of the structures on the suit land amounts to condemning them unheard in violation of their rights to fair hearing as enshrined in the Constitution of Kenya. 9. They aver that unless the orders sought herein are granted, the applicants’ constitutional rights to property risk being fundamentally infringed. 10. Further, they maintained that the applicants have identifiable interest in the proceedings since they own portions of the suit land which is subject to the judgment of this court issued on 5/2/2026 and urged the court to allow the application as sought in the interest of justice and the larger public interest. 11. The application was opposed. The plaintiffs/respondents filed their Replying Affidavits dated 04.05.2026 and sworn by the 1st plaintiff/respondent in response to the application on his own behalf and on behalf of his co-plaintiff. 12. He deponed that the suit was fully heard and determined vide a judgment delivered on 05.02.2026, thereby effectively settling and concluding the dispute between the parties. 13. He dismissed the applicants’ allegation against them for failing to join them as parties to the suit as misleading and irrelevant and maintained that the applicants were not necessary parties to the suit. 14. Further, it is his claim that the applicants have not demonstrated any identifiable stake or interest in the subject matter to warrant joinder under the law. That the ownership claims by the applicants are therefore based on defective and unenforceable transactions that cannot give rise to any legal or equitable rights and interests against the plaintiffs. 15. In conclusion, the plaintiffs/respondents maintained that the applicants are not necessary parties to warrant joinder and therefore urged the court to dismiss the application with costs. 16. The Replying Affidavit filed by the plaintiffs/respondent was duly served upon the applicants, who filed a Supplementary Affidavit dated 08.05.2026 and sworn by Rose Jepkoech Lagat. 17. She admitted that the matter herein was fully heard and determined but maintained that the said proceedings took place in their absence and without their participation despite being the ones in possession and occupation of the suit land during the subsistence of the suit. 18. They maintained that since the applicants are the ones in occupation of the suit land, they are bound to be affected by the decision of this court and are therefore necessary parties to the proceedings herein. 19. In conclusion, the applicants reiterated the averments and claims made in the application and the supporting affidavit and urged the court to allow the present application in the interest of justice. 20. The present application was canvassed by way of written submissions. The proposed Interested Parties/Applicants filed their submission dated 08.05.2026 while the plaintiffs/respondents filed their submissions dated 29.05.2026 together with authorities, which I have read and duly considered in arriving at my decision as hereunder. **Analysis and Determination:** 1. I have carefully considered the Application and the grounds therein, the Supporting and Supplementary Affidavit and the annexures thereto, the replying affidavits in response to the application as well as the rival submissions in totality and I identify the following issues for determination: - 2. *Whether the orders sought herein for joinder are tenable in the circumstances* 3. *Whether the present application is merited*. 4. *Who shall bear the costs of the present Application.* 5. The above issues for determination having been duly identified, I will now proceed to discuss the same as hereunder. **Whether the orders sought herein for joinder are tenable in the circumstances;** 1. The first issue herein seeks to determine and ascertain whether the orders sought in the present application are legally tenable taking into account the fact that the suit herein has since been determined and/or concluded. 2. Order 1 Rule 10(2) allows the joinder of a party to the proceedings before a court and 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.*** 1. The main purpose for joinder as provided under Order 1 Rule 10 (2) of the Civil Procedure Rules is to assist the court in effectually and effectively determining the issues in controversy before it and adjudicating upon and settle all the questions involved in the suit. 2. However, in the present suit, the dispute has already been effectively determined and the matter concluded vide the judgment dated 05.02.2026. Thus, by the time of filing the present application, the suit which the Intended Interested Parties seek to be joined had since been terminated and concluded and hence counterproductive with the main purpose and objective for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules. 3. In the case of ***Mayfair Holdings Ltd v Municipal Council of Kisumu; Pauline Mauwa Akwacha (Interested Party/Applicant) [2020] eKLR*,** the court referenced the decision of Nyamweya J (as she then was) in ***Lilian Wairimu Ngatho & another v Moki Savings Co-Operative Society Limited & another [2014] eKLR*** and held as follows: - ***“The provisions of Order 1 Rule 10(2) state that joinder of a party can be made “a tany stage of the proceedings”. “Proceedings” are defined in Black’s Law Dictionary Ninth Edition at page 1324 as “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment”. A party can therefore only be joined to a suit a tany time during the pendency of the suit, but not after the same has been concluded. This finding is premised on the basis that the purpose for joinder is to enable the court effectually and completely adjudicate upon and settle all questions involved in a suit. It is therefore of no use if a party seeks to be joined when the court has already made its findings on the issues arising. Similarly, the main purpose for joining a party as a Defendant under Order 1 Rule 3 of the Civil Procedure Rules is to claim some relief from the said party, and therefore such joinder can only be made during the pendency of a suit. As this court has declined to set aside the judgment herein, there is no suit pending before this court, and the Applicants cannot therefore be joined as parties at this stage.”*** 1. Consequently, this court finds that the orders sought in the present application are not legally tenable in the circumstances, particularly because the suit herein has since been determined and the issues in dispute thereto have been effectively and effectually determined on merit. **Whether the present application is merited;** 1. In view of the findings in issue No. (i) above, this court finds that the present application is not merited and the applicants/ intended interested parties are therefore not entitled to the grant of reliefs as sought therein. **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, it is my considered view that each party should bear their own costs of the present application. **Disposition:** 1. The upshot of the above is that the present application vide the Notice of Motion dated 13th April, 2026 is **not merited** and is hereby **dismissed** with no orders as to costs. 2. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** this **23rd** day of **JULY, 2026.** **HON. C.K. YANO** **JUDGE** Ruling delivered in the presence of: - Ms. Odwa for Intended Interested parties. Mr. Wainaina for 5th & 7th Defendants. Ms. Tirop for the Plaintiffs. No appearance for 1st -4th & 6th Defendants. Court Assistant – Laban