https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4965

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELC CASE NO. E003 OF 2023** **KEJOOLO ENOLE NKOYAI…….………………..……………..PLAINTIFF/RESPONDENT** **-VERSUS-** **OLEUNWA TONKEI………………………………..….…….1ST DEFENDANT/APPLICANT** **JOEL LETAYA RAKITA……………………………….…….2ND DEFENDANT/APPLICANT** **JOEL NAKUTIT MELOBU……………………………….…..3RD DEFENDANT/APPLICANT** **LAND ADJUDICATION OFFICERTRANSMARA SOUTH, WEST & SOUTH** **SUB-COUNTIES………………………………...………….4THDEFENDANT/RESPONDENT** **LAND REGISTRAR, KILGORIS………………………...…5TH DEFENDANT/RESPONDENT** **RULING** 1. The application dated 13th of April 2026 subject of this Ruling seeks the following; 2. Prayers. 3. That leave be granted to the Plaintiff/Applicant to amend the plaint in terms of the draft amended Plaint and the draft amended Plaint be deemed as duly filed upon payment of requisite fees. 4. That the court be pleased to order joinder of 2nd intended plaintiff, 3rd intended plaintiff, 6th intended Defendant and 7th Intended Defendants. 5. In support of the above prayers, the grounds, are *interalia*; - 6. That during the pendency of this suit, the suit properties changed hands to 3rd parties who are not parties to the suit. 7. That for determination of the real matter in dispute the new registered properties ought to be joined as parties. 8. That Kejoolo Enole Nkoyai is registered as proprietor of Transmara/Kimintet ‘D’/1802. 9. That Paul Ole Kuyana is now the registered proprietor of Transmara/Kimintet ‘D’/1803. 10. That Sintoyia Noonkuta Swakei is now the registered proprietor of Transmara/Kimintet ‘D’/1804. 11. That Julius Ntokoyian is now the registered proprietor of Transmara/Kimintet ‘E’/328. 12. That Emmanuel Moseka Karionka is now the registered proprietor of Transmara/Kimintet ‘E’/329. 13. That no prejudice will be occasioned on the defendants. 14. The application is supported by the annexed supporting affidavit of Kejoolo Enole Nkoyai who reiterates the grounds in support of the application and has annexed copies of certificates of search for Transmara/Kimintet ‘D’/1802, Transmara/Kimintet ‘D’/1803, Transmara/Kimintet ‘D’/1804, Transmara/Kimintet ‘E’/328 and Transmara/Kimintet ‘E’/329 as well as a draft copy of the amended Plaint. 15. The Application is opposed by a Replying affidavit deponed by the 1st Respondent on his own behalf and with the authority of the 2nd and 3rd Defendants/Respondents who deposes *interalia* that; - 16. That the suit concerns specific parcels of land, which were subdivided during the pendency of the suit; while the matter was actively in court, 17. That the resultant titles are a nullity and the new proprietors claim interest from the illegal subdivision. 18. That the amendment would have the effect of sanitizing or validating the illegal subdivisions and the doctrine of his pendens applies to determine the matters. 19. The application is thus brought in bad faith and is calculated to sanitize the illegality and the court should not allow the Amendments. 20. The office of the A.G Kisii representing the 4th and 5th Defendants/Respondents, did not file a Replying affidavit nor grounds of opposition, and thus did not oppose the application. 21. Both Ms. Bosibori learned counsel for the Applicant and Ms. Mireri learned counsel for the Respondents relied solely on their respective cases as stated and did not file submissions. **Issues for Determination** 1. The issue for determination herein is whether the application is merited. **Analysis and Determination** 1. Whereas Amendments ought to be allowed so as to bring the fore the real question in controversy, the application herein was made on the basis that the original suit property to wit Transmara/Kimintet ‘D’/1681 had been subdivided into three portions and that the three parcels are owned by different parties and that two of the said parties ought to be joined in the proceedings by way of the proposed Amendments. 2. The Respondent position is that the subdivisions were carried out during pendency of the suit in contravention of the doctrine of Lis pendens hence the same are illegal and the proposed and subsequent Amendment are joinder is meant to sanitize the illegal subdivisions. 3. I have perused this file and I take judicial notice that vide the Ruling dated 16th November 2023 delivered pursuant to an injunction application filed by the Plaintiff/Applicant herein, Washe J. issued injunctive orders restraining the defendants from interalia, selling, transferring, leasing and/or disposing the suit land known as Transmara/Kimintet ‘D’/1681 and a prohibitory order against, altering, changing, resurveying and/or tampering with the mutation or boundary features of Transmara/Kimintet ‘D’/1681 pending determination of this suit. 4. It follows that the subdivision of Transmara/Kimintet ‘D’/1681 into 3 parcels registered in the name of the Plaintiff, the proposed 2nd Plaintiffs Paul Ole Kuyana as well as the proposed 3rd Plaintiff Sintoyia Noonkuta Swakei, was made in contravention of valid court orders and was thus a nullity. 5. The court agrees with the Respondent that the said proposed Amendments so as to bring the proposed 2nd and 3rd Plaintiffs herein would essentially be to sanitize an illegality and that the proposed Amendment must thus be disallowed. 6. That Applicant proposes to introduce new Defendants being Julius Ntokiayian and Emmanuel Moseka Karionka who are said to have obtained titles within the suit parcels illegally and an Amendment of the Plaint in that regard will bring to the fore all issues in controversy and is allowable under section 100 of the Civil Procedure Act. 7. In this regard the Application partially succeeds, in so far as the Amendments seek to introduce the 6th and 7th Defendants but is disallowed in relation to the proposed 2nd and 3rd Plaintiff who obtained registration of their parcels contrary to valid injunctive orders that are still in force. 8. Thus, to the said extent the application succeeds and costs are to be borne by the Applicant as against the 1st to 3rd Defendants. 9. The Applicant/Plaintiff shall file the Amended Plaint within 21 days from today and serve the Defendants within 7 days of filing the same. 10. The 1st to 5th Defendants to file their Amended Defences within 15 days from date of service. 11. The proposed 6th and 7th Defendants are equally granted 15 days to enter appearance and file their defences. 12. The plaintiff shall comply with Order 11 within 30 days by filing documents and statements while the Defendants shall comply with Order 11 within 60 days. 13. Mention on 1st October 2026 to confirm compliance. Dated at Kilgoris this 29th day of July, 2026 Hon. M.N Mwanyale Judge **In the presence of** CA –Sylvia/Clara Ms. Bosibori for Plaintiff/Applicant Ms. Mireri for Respondent Mr. Ranah for 4th and 5th Defendant