https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3925

Sideng & 4 others (Suing on behalf of themselves and for and on behalf of Kogony Land Council of Elders Welfare) v Kenya Airports Authority & 3 others (Environment and Land Judicial Review Case 7 of 2017) [2026] KEELC 3925 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3925 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Judicial Review Case 7 of 2017 CC Oluoch, J June 18, 2026 Between Chrisantus Ayieko Sideng & 4 others & 4 others & 4 others & 4 others Petitioner Suing on behalf of themselves and for and on behalf of Kogony Land Council of Elders Welfare and The Kenya Airports Authority 1st Respondent The Attorney General 2nd Respondent The Commissioner of Lands 3rd Respondent and John Onyango Okore (Suing For And On Behalf of 64 other Land Chairmans) Proposed Interested Party Ruling Introduction 1.This ruling determines the Chamber Summons application dated 19th February 2026, brought by the Proposed Interested Parties/Applicants, William Oraro Ongany and John Onyango Okore, suing for and on behalf of 64 other land claimants under Section 13 of the Environment and Land Court Act, Order 1 Rules 10(2) and 25 of the Civil Procedure Rules, and Sections 3, 3A and 63(e) of the Civil Procedure Act, Chapter 21, Laws of Kenya, and all enabling provisions of the law. The Applicants seek the following orders:a.Leave to allow the Proposed Interested Parties to be joined in this suit to defend their rights and interests over the suit property as land claimants whose parcels of land were acquired by the 1st Respondent for the construction and expansion of Kisumu Airport.b.The costs of this application be provided.The Chamber Summons is supported by the affidavit of William Oraro Ongany, a resident of Kogony within Kisumu County, sworn on 19th February 2026. In opposition to the application, Paul Otieno Akeyo filed a replying affidavit sworn on 19th March 2026. The Application 2.The core arguments in the supporting affidavit are that the deponent’s ancestors were physically evicted and their land taken by the colonial government in 1914 and 1942 to facilitate the construction and runway expansion of the Kisumu Airport, without any compensation or resettlement. The original Petitioners moved this Court by way of a representative suit to seek compensation for individual clan members whose parcels of land were taken, not as a general claim for the entire membership of the Kogony clan. Under Gazette Notice No. 7681 of 14th November 2025, the National Land Commission directed that the claimants be compensated with alternative land or monetary compensation by the Ministry of Roads and Transport, through the Kenya Airports Authority, and that the decision be adopted as a final judgment of this Court. 3.The Applicants aver that the original Petitioners, Christanus Ayieko Sideng, Jack Owiddo Oraro, and Earnest Ondu Orwa, were genuine landowners who have since died. The individuals now claiming to lead the Kogony Land Council of Elders Welfare are not genuine land claimants and have not experienced land displacement. The current leaders have compiled a list of Kogony clan members to distribute compensation to those who are not rightful land claimants. Genuine landowners and their heirs are recorded in the National Archives. Joinder of interested parties is necessary for the Court to identify rightful beneficiaries and prevent injustice. Reply to the Application 4.The Petitioners/Respondents argued that the application is procedurally defective because the two Applicants have not demonstrated written authority to act on behalf of the 64 land claimants. The Respondent further averred that the suit herein was filed by the Kogony Land Council on behalf of the entire Kogony Clan, which was also recognised by the National Land Commission. Since the Applicants are members of the Kogony Clan, their interests are already represented by the Petitioners, rendering any new submissions untenable. 5.The Respondents contended that litigation has been pending for over 17 years, yet the Applicants seek joinder only now, after the National Land Commission finalised compensation. The application appears to be driven by self-interest, aiming to limit compensation to 66 people and exclude the wider clan. According to the 1st Respondent, it is an attempt to circumvent the High Court’s ruling in JR Application No. E022 of 2025, which halted the Applicants’ leadership takeover of the welfare society. Further, the Applicants haven’t shown any prejudice or irreparable harm if the application is denied, as they will still receive compensation as general members. The Applicants’ Supplementary Affidavit 6.To address the objections raised in the reply affidavit, the Applicants filed a supplementary affidavit sworn on 31st March 2026. To cure the alleged defect regarding authority, the deponent annexed a list of signed written authorities and copies of national identity cards for the 65 proposed interested parties. The Applicants challenged Paul Otieno Akeyo’s standing, stating that he is not the current Chairman of the Kogony Land Council of Elders Welfare and has no authority to swear affidavits on its behalf. The Applicants annexed a report from the Registrar of Societies dated 24th November 2025, which shows that Paul Akeyo and his committee were removed from office at a Special General Meeting on 6th September 2025 for failing to file annual returns for seven years (since 2018) and for failing to hold statutory AGMs since September 2019. 7.The Applicants reiterated that the original Petitioners brought this suit as a representative action on behalf of families displaced by the airport expansion, and that the National Land Commission’s compensation is intended for these genuine land claimants, not the entire Kogony Clan. The Applicants attached official records from the National Archives, dated 3rd November 2025, listing the 1942 evictees and the compensation they received for their structures. The Applicants argued that the welfare society’s current leaders are attempting to dilute the compensation by distributing it to the entire clan, thereby depriving the actual displaced families of their rightful remedy. The Petitioners’ Further Affidavit 8.Paul Otieno Akeyo filed a further affidavit to address the new matters raised in the supplementary affidavit. The core arguments in the further affidavit are that the Applicants have failed to demonstrate that the 65 persons on whose behalf they act are the lawfully appointed legal representatives or administrators of the estates of the deceased 1942 evictees, meaning they lack a direct, legally enforceable interest in the subject matter. Regarding the Registrar of Societies’ report dated 24th November 2025, the Petitioners averred that it is currently under active judicial challenge in the High Court of Kisumu, in Judicial Review Application No. E022 of 2025. On 19th December 2025, the High Court granted an interim order of stay and prohibition, restraining the Registrar of Societies from registering any change in office-bearers. Because the changes have not been registered, Paul Akeyo remains the lawful Chairman of the welfare society on record. The Petitioners argued that the application is speculative and based on unfounded fears, as the Applicants have not shown that the current welfare officials will fail to distribute the compensation fairly. Submissions 9.During the oral hearing of the application, Mr Mbeka, appearing for the Proposed Interested Parties/Applicants, submitted that the application was brought to protect the rights of the actual descendants of the families displaced by the Kisumu Airport expansion in 1914 and 1942. He argued that the original representative suit was filed specifically for those who lost land, as documented in the National Archives. He contended that, because all the original landowning Petitioners are deceased, the suit is now controlled by welfare officials who are not genuine land claimants and who intend to distribute the compensation to the entire clan registration. He argued that the Applicants have demonstrated a legitimate interest and that their joinder is necessary to ensure the compensation is directed to the rightful beneficiaries. 10.Mr Wasuna, appearing for the Petitioners, submitted that the application is brought under Order 1 Rule 10(2) of the Civil Procedure Rules, which is intended to add parties whose presence is necessary for the adjudication of a live dispute. He argued that, because the National Land Commission has already delivered its final compensation award, there is no longer any live issue for adjudication by this Court. He contended that the Applicants are asking the Court to determine locus standi and to validate who the lawful landowners are, which is not the proper remit of a joinder application. He concluded that the administrative vetting process will naturally determine the genuine beneficiaries, making the proposed joinder unwarranted. Analysis and Determination 11.From the record, the application, the affidavits and the oral submissions, it is uncontested that the suit land was compulsorily acquired by the colonial administration for the construction and expansion of the Kisumu International Airport. The parties agree that the petition is a representative suit filed on behalf of the historical land claimants and that the National Land Commission issued a determination on 13th November 2025, recommending compensation for this displacement. It is also not disputed that there is an active leadership dispute within the Kogony Land Council of Elders Welfare, which is currently pending in the High Court under JR Application No. E022 of 2025. The issues for determination are:a.Whether the Applicants have met the statutory and jurisprudential requirements for joinder under Order 1 Rule 10(2) of the Civil Procedure Rules.b.Whether the Applicants are likely to suffer prejudice if they are not joined in the suit. 12.At the outset, the fundamental question this Court must resolve is whether a live, active dispute is before it that warrants the joinder of additional parties. The Applicants seek joinder under Order 1 Rule 10(2) of the Civil Procedure Rules, which provides:“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.” 13.The jurisprudential standard governing applications under this sub-rule requires that the underlying suit be active and unresolved. In Hopf v Director of Survey & 2 others; Sakaja & 2 others (Interested Parties) [2022] KEELC 6 (KLR), Nyagaka, J., addressing the threshold requirement that court proceedings be active, pending, and alive for a joinder application to be competent, set out the position of the law as follows:“ 15.The Applicants seek to be enjoined in this suit. It is instructive to note that before a party is enjoined in a matter, the court ought to satisfy itself that the proceedings are alive. That means that the suit must still be pending before the Court. Therefore, the applicant must move the Court during the pendency of the proceedings in that matter. Again, besides the proceedings being pending, there should be no bar to them going on, so much so that if there are orders staying the proceedings, then the party cannot move the Court since the proceedings are ‘frozen’ until the orders are lifted, vacated or set aside.” 14.This Court also associates itself with the decision in Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] KEHC 2227. The Court therein quoted the decision of Nambuye, J. (as she then was) in Kingori v Chege & 3 Others [2002] KEHC 1192 (KLR), on the parameters for joinder, thus:“When the above principles are applied to the facts of these applications it is clear that the guiding principles when an intending party is to be joined are as follows: 1.He must be a necessary party. 2.He must be a proper party. 3.In the case of a defendant there must be a relief flowing from that defendant to the plaintiff. 4.The ultimate order or decree cannot be enforced without his presence in the matter. 5.His presence is necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit.” 15.The settled position in law is that parties cannot be added to introduce new causes of action or to change the nature of the suit. Necessary parties are those essential to the constitution of the suit, without whom no decree can be issued. In this case, with the parties’ consent, the substantive dispute was referred to the National Land Commission for a hearing on historical land injustice under Section 15 of the National Land Commission Act. The Commission investigated the claim, conducted site visits, held public hearings, and issued its decision on 13th November 2025. This decision, published in Gazette Notice No. 7681 on 14th November 2025, upheld the claim of historical land injustice and recommended compensation for the Kogony Clan claimants, either in alternative land or in monetary compensation. 16.Consequently, as rightly argued by the Petitioners, the substantive dispute has already been heard and determined on its merits by the statutory body. There is nothing left for active litigation or adjudication before this Court. The only phase that remains is the formal adoption and administrative execution of the NLC’s award. Order 1 Rule 10(2) is designed to add parties whose presence is necessary to enable the court to adjudicate effectively and completely upon and settle the questions involved in a pending suit. It is not designed to determine issues such as locus standi or to insert new parties into a suit where the trial has effectively ended, and only administrative enforcement remains. The Court therefore finds that joining the Applicants in a suit already resolved on the merits would serve no meaningful judicial purpose at this stage of the proceedings. 17.Furthermore, the joinder application raises entirely new controversies not contained in the original pleadings. The suit was brought by the Kogony Land Council of Elders Welfare on behalf of itself and the Kogony Clan to contest historical displacement and to seek a general recommendation for compensation. The National Land Commission upheld this claim and awarded in favour of the “Kogony Clan”, represented by the welfare society. Through this application, the Applicants question whether the current Petitioners are legitimate land claimants and whether the beneficiaries should be limited to the individuals they represent. Deciding these questions would require the Court to conduct a complex post-judgment trial to verify standing, establish ancestral links, and examine individual property rights, which is beyond the scope of a joinder application under Order 1 Rule 10(2). Joinder cannot be used to litigate new substantive claims or to fundamentally alter the nature of the initial representative action, which has already been determined on the merits. 18.Turning to whether the Applicants’ interests will be irreparably prejudiced if joinder is denied, they contend that the welfare society’s officials will mismanage the compensation award. The Court finds this apprehension premature and speculative. I would expect the NLC award to be implemented through a structured process involving government players, including the local administration, to vet the claimants. Indeed, the Applicants themselves have conceded this in paragraph 11 of the supporting affidavit, which reads:“I know of my own knowledge that the full list of genuine land claimants will be furnished to the court after thorough investigation by the Local Administration together with the officials of Kogony Land Council of Elders.” 19.Furthermore, the list of evictees retrieved from the National Archives, which the Applicants annexed as Exhibit WOO-1(b), bears a note stating:“The full beneficiary list of descendants of 1942 evictees will be verified by the local administrative authorities together with stakeholders and final copy presented to court.” 20.These averments demonstrate that an established administrative process is already in place. The rightful beneficiaries of the NLC award will be thoroughly vetted and verified by the local administrative authorities. If the Applicants and the individuals they represent are indeed the genuine descendants of the evictees, they will readily satisfy the vetting criteria, and their interests will be fully addressed at that stage. Conversely, if the current Petitioners or welfare officials are not entitled to compensation because they were not affected by the historical displacement, that issue will likewise be resolved during the vetting process. There is therefore no risk of miscarriage of justice or irreparable prejudice. Conclusion 21.In the final analysis, this Court finds that the Proposed Interested Parties’ application is without merit. For the reasons set out above, this Court orders as follows:a.The Applicants’ Chamber Summons dated 19th February 2026 is hereby dismissed in its entirety.b.Having regard to the nature of the dispute, I direct that each party bear its own costs. RULING DELIVERED VIRTUALLY, SIGNED AND DATED THIS 18TH DAY OF JUNE 2026.C. C. OLUOCHJUDGEIn the presence of:Faith Court AssistantMr Mbeka for the Applicants/Proposed Interested PartiesMr Wasuna for the Petitioners/Respondents Mr David Otieno for the 1st Respondent