Gidion Kibitok & 3 Others v Annah Jepsat Rotich & 4 Others; Kennedy Kiptoo & 9 Others (Intended Interested Parties/Applicants)

b) That the Honourable Court be pleased to stay proceedings of the main suit and the parties be referred back to mediation. c) This Honourable Court be pleased to grant any further orders may be deemed fit in the circumstances. 2. The anchorage of the application is the 1 st applicant’s supporting affidavit of ten paragraphs sworn on even date by the 1st applicant for and on behalf of his co-applicants and himself, the accompanying documents namely a copy of certificate of official search (KK 1) and a copy of surveyor’s report (KK 2) alongside the five grounds set out on its face. Briefly, the applicants asserted, inter alia, that the 1 st and 2nd defendants/Respondents registration of the had suit obtained land fraudulently reference number Nandi/Cheptil/49 and their names have since been struck off from the register of a suit land herein. That what is pending is negotiation/mediation as to the rectification of the land record to align it with the surveyor’s report. That therefore, it is necessary that the applicants be joined to the present suit to enable the court determine any questions KAPSABET ELCLC NO. E014 OF 2023 RULING 2

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that may arise and will not prejudice the interest of any party herein. 3. The plaintiffs/respondents opposed the application by their Replying Affidavit of 21 paragraphs sworn on 27 th July 2025 (I think, the year erroneously indicated as 2025 in lieu of 2026 therein) by the 3rd plaintiff/respondent for and on behalf of his co-respondents/plaintiffs and himself and that it be disallowed in the interest of justice. It was averred, inter alia, that LR No. Nandi/Cheptil/49 which forms the subject of the suit herein was illegally and fraudulently superimposed in LR No. Nandi/Cheptil/24 which belongs to the Deceased as revealed in a copy of certificate of official search marked ‘B’ and annexed to their affidavit. That the plaintiffs/respondents were duly appointed as beneficiaries of the estate of the Deceased vide Eldoret High Court Succession Cause Number 53 of 2020 hence, they have the legal capacity to institute the suit. That the said illegality and fraud was discovered during the ascertainment of the acreage for purposes of distribution in the said succession cause. KAPSABET ELCLC NO. E014 OF 2023 RULING 3

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4. Further, the plaintiffs averred that the entitlement of the beneficiaries of the estate of the deceased will only be determined after the conclusion of this suit. That there is no allocation of portions in the succession cause as insinuated by the proposed interested parties in the application which is a far cry from the truth. That the said succession cause be held in abeyance. That thus, the applicants have no locus to be joined to the instant suit. 5. The 1st and 2nd defendants/respondents did not oppose the application. 6. The 3rd and 4th defendants/respondents through Callen Masaka, Deputy Chief State Counsel for the Attorney General implored the court to dismiss the application with costs upon the grounds of opposition dated 20 th May 2026 thus; a) That the application does not meet the laid down threshold for enjoinment as an interested party. b) That the application fails to demonstrate any direct identifiable and proximate legal stake to the subject matter of the suit and does not even specifically indicate which suit land alluded to. KAPSABET ELCLC NO. E014 OF 2023 RULING 4

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c) The applicants have not demonstrated any prejudice that may be caused by non-joinder to themselves or to justice and have not stated any role towards aiding court to deliver justice. d) That the Notice of Motion in totality is vague, lacks factual precision and it is otherwise intended to delay the ends of justice. 7. By their relying affidavit of thirteen paragraphs of thirteen paragraphs sworn on 30th June 2026 by the 1 st applicant, it is the applicants’ contention that the grounds of opposition be dismissed with costs and that the application dated 17 th March 2026 be heard on merit. That the grounds of opposition are vague and not clearly state the provisions of the law violated by the application which is grounded on correct legal principles with no errors or defects therein to expose the same to incompetence. That they are all beneficiaries of the estate of the Deceased arising from Eldoret Succession Cause No. 53 of 2020 and they have all occupied and settled on the subject property being part of the Estate. That the right to be joined to a case as a party KAPSABET ELCLC NO. E014 OF 2023 RULING 5

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cannot be waived by statute as alluded to by the 4 th defendant in light of, inter alia, Article 25 (c), 48, 50 (1) of the Constitution of Kenya 2010 and the Court of Appeal decision in James Kanyiita Nderitu & another vs Marios Philotas Ghikas & another (2016) eKLR. 8. In response to the 1st to 4th plaintiffs’ replying affidavit by the affidavit of 18 paragraphs sworn on 7th August 2026 by the 1st applicant on his own behalf as the beneficiary of the Estate of the Deceased and on behalf of his co-applicants who are all beneficiaries of the same estate it is stated that alleged administrators pursuant to P & A No. 53 of 2020, did not consult or seek the mandate of the applicants before instituting this suit. That during succession proceedings, it was the Land Registrar’s position that this matter can be handled administratively. That litigation is unending process hence, the present matter be referred to mediation. That joinder is necessary to avert any prejudice that is likely to be suffered by the applicants/interested parties in this suit in the interest of justice. KAPSABET ELCLC NO. E014 OF 2023 RULING 6

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9. The 5th defendant/respondent is in support of the grounds of opposition. 10. It must be borne in mind that by the plaint dated 29 th August 2023, the four plaintiffs sued the five defendants for a declaration that the late Kitur Chepsungulgei (The Deceased herein) is the legal owner of LR No. Nandi/Cheptil/24 and LR No. Nandi/Cheptil/49 both cumulatively measuring approximately 103 acres, among other orders. 11. On 17th March 2026, this Honourable Court directed that hearing of the application be by written submissions pursuant to Order 51 Rule 16 of the Civil Procedure Rules 2010, Article 159 (2) (b) of the Constitution of Kenya 2010 and section 3 of the Environment and Land Court Act 2015 (2011). 12. By the submissions dated 7th August 2026, learned counsel the applicants/intended interested parties made reference to African Proverb that division only benefits outsiders while unity gives protection to true owners of property. That the application is well grounded in law as it is KAPSABET ELCLC NO. E014 OF 2023 RULING 7

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brought under, inter alia, sections 1A, 1B and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya, Order 1 Rule 10 of the Civil Procedure Rules, 2010 and has no defects. Counsel framed issues including whether the applicants/interested parties have an interest in the suit. In the analysis of the issues, it was submitted that the applicants clearly demonstrated their nexus to the suit. That the subject matter in this suit is the same property consisting the estate of the Deceased herein which was distributed to the beneficiaries/interested parties vide Succession 53 of 2020 and have all occupied and settled in the property in dispute in this suit. 13. Further, counsel submitted that the applicants have the right to be joined to the suit in light of Articles 48, 50 (1) and 159 (2) (b) of the Constitution of Kenya 2010 and James Kanyiita Nderitu another vs Marios Philotas Ghikas another (2016) eKLR , That the instant application is merited and thus, the same be allowed accordingly. Reliance was made on Order 1 Rule 10 (b) of the Civil Procedure Rules 2010 for substitution and KAPSABET ELCLC NO. E014 OF 2023 RULING 8

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addition of parties, Order 31 Rule 1 of the Civil Procedure Rules 2010 regarding property vested in a trustee or administrator, among others, Section 27 of the Civil Procedure Act Chapter 21 Laws of Kenya on costs of the suit and Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors (1969) EA 696 as endorsed by the Supreme Court of Kenya in the case of Hassan Ali Joho & another vs Suleiman Said Shahbai & 2 others {2014} KLR at paragraph 31 in respect of a preliminary objection. 14. The plaintiffs/respondents and the defendants/respondents filed no submissions as at the time of delivery of the present ruling. 15. Having considered the application, the grounds of opposition and the replying affidavit thereto and the applicants’ submissions in entirety, the main Issues relate to joinder of the applicants and reference of the case to mediation. 16. Notably, the applicants are seeking to be joined to the instant proceedings. In Black’s Law Dictionary 10th KAPSABET ELCLC NO. E014 OF 2023 RULING 9

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Edition at page 965, the term ‘Joinder’ is defined as follows; ‘The uniting of parties or claims in a single lawsuit.’ 17. It must be borne in mind that Order 1 rule 10 (supra) provides for substitution and addition of parties to a suit. 18. Moreover, this court subscribes to the Supreme Court of the Republic of Kenya decision in the case of Muruatetu & another vs Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated) [2016] KESC 12 (KLR) where it was held that formal application for joinder of parties to a suit is a right at the discretion of the court. 19. Also, the said Court noted that joinder must be founded upon elements which include; that the applicant has personal interest or stake in the matter and that the same must be set out or be identifiable in the application but should not be something remote or prejudicial to the applicant. KAPSABET ELCLC NO. E014 OF 2023 RULING 10

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20. In the case of JMK vs MWM & Another (2015) eKLR the court cited the decision of Central Kenya Ltd vs Trust Bank Limited & 4 Others (1996) KECA 197 KLR to emphasize that an application for joinder of parties can only be filed in pending proceedings. The Court held that allowing any post-judgment joinder would undermine the finality of judgments, violate the doctrine of functus officio, and prejudice the parties who fully litigated the matter without any notice of the third parties’ claims. 21. In the case of Raila Odinga & 2 Others vs Independent Electoral & Boundaries Commission & 3 Others (2013) eKLR, ‘Functus officio’ principle was considered thus; “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to KAPSABET ELCLC NO. E014 OF 2023 RULING 11

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provide finality. Once proceedings are finally concluded, the court cannot review or alter the decision: any challenge to its ruling on adjudication must be taken to a higher court if that right is available.” 22. The application, the grounds of opposition and submissions on record discern the applicants’ identifiable and proximate legal stake in the subject matter herein. Therefore, their joinder would not occasion any prejudice to any party in this suit. 23. The Applicants pray for reference of this matter to mediation herein. The prayer is in line with Article 159 (2) (c) of the Constitution of Kenya 2010 and section 5 of the Civil Procedure (Court Annexed Mediation) Rules 2022. 24. Admittedly, under Articles 48 of the Constitution of Kenya 2010, the applicants deserve access to justice in this case. Joinder should not be denied where it aids the court in reaching a just determination and promotes access to justice as enshrined in Article 48 (supra) and held in Trusted KAPSABET ELCLC NO. E014 OF 2023 RULING 12

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Society of Human Rights Alliance-vs-Mumo Matemu & 5 others (2014) eKLR. 25. Moreover, the applicants should not be locked out of the instant suit; See Pashito Holdings Ltd & another vs Paul Ndungu & 2 others (1997) eKLR and Kalpana Rawal vs JSC (2015) eKLR on the right to fair hearing. 26. In Nderitu case (supra) which applied the decision in the case of Onyango Oloo vs Attorney General {19861989} EA 456, it was observed that the right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system. 27. Clearly, the instant suit is pending hearing and determination as noted in JMK case (supra) and there is status quo order by ruling rendered on 7 th November 2025. It crystal clear since the suit is not concluded as held in Raila Odinga case (supra) , access to justice and fair hearing to all parties including the applicants would be necessary as Muruatetu, Pashito, Nderitu, Human Rights Alliance cases (supra). KAPSABET ELCLC NO. E014 OF 2023 RULING 13

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28. In conclusion, it is thus, my finding that the applicants have demonstrated entitlement to the main orders sought in the application dated 17th March 2026. So, the application is meritorious. 29. Wherefore, the application dated 17 th March 2026 is hereby allowed in the terms infra; a) That leave is granted to the applicants to be joined as interested parties to the suit. b) The proceedings of the main suit stayed and the parties are referred to Court Annexed Mediation (CAM) and a report to be filed in this court for further action. c) Costs be in the cause. 30. Mention of the suit before the Deputy Registrar of this court on 29th September 2026 for appointment of mediator and for further directions. 31. It is so ordered. Dated and Delivered at Kapsabet this 23rd day of September 2026. HON. G M A ONGONDO KAPSABET ELCLC NO. E014 OF 2023 RULING 14

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JUDGE In the presence of; 1. Mr. chebiego learned counsel for the applicants/intended interested parties 2. M/s Barno learned counsel for the 1st and 2nd respondents/ defendants 3. Mr. Walter Kipkorir, court assistant KAPSABET ELCLC NO. E014 OF 2023 RULING 15

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