Atodonyang v Kipkapsinende Farms Limited & 3 others [2025] KEELC 2935 (KLR)

Atodonyang v Kipkapsinende Farms Limited & 3 others (Enviromental and Land Originating Summons E003 of 2024) [2025] KEELC 2935 (KLR) (26 March 2025) (Ruling)

Neutral citation: [2025] KEELC 2935 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Enviromental and Land Originating Summons E003 of 2024

CK Nzili, J

March 26, 2025

Between

Nicholas Owon Krap Atodonyang

Plaintiff

and

Kipkapsinende Farms Limited

1st Defendant

John Krop Onyangapou

2nd Defendant

Henry Kiptiony Kiplagat

3rd Defendant

County Land Registry Trans Nzoia County

4th Defendant

Ruling

1. Two applications are coming for a ruling. In the 1st application, the applicant by an application dated 28/10/2024, seeks conservatory orders preserving the status quo over land No. Kwanza/Namanjalala Block 4/3 and an order of temporary injunction restraining the 1st, 2nd, and 3rd respondents from interfering, subdividing, trespassing, charging, selling, leasing, encroaching, and altering boundaries or trespassing into 26 acres of land, forming part of the suit land which is under his quiet possession and occupation, until the substantive suit is heard and finalized.

2. The grounds are set out on the face of the application and in a supporting and supplementary affidavits of Nicholas Owon Krap Atudonyang, sworn on 28/10/2024 and 21/2/2025. It is deposed that around 2006, the plaintiff and 82 other persons purchased 748 acres of land situated at Kapsitwet, Kwanza Sub-County, as per a written agreement dated 20/11/2006, which they subdivided on 1/12/2006, according to their respective shares, took vacant possession and has also fenced off his 26 acres. He attached copies of the green card; official search certificate; sale agreement, and a list marked NOKA 1A, 2, and 3.

3. The plaintiff avers that the 1st, 2nd, and 3rd respondents were duty bound to effect the transfers in favor of the beneficiaries but have not, despite the beneficiaries having retained possession and occupation of their portions since December 2006. The plaintiff avers that he has been occupying his 26 acres, openly, peacefully, continuously, and uninterruptedly since 1/12/2006, by undertaking agricultural activities, only for the 2nd and 3rd respondents recently to attempt to reduce his acreage and give it to a third party, without his consent or approval. The applicant fears that unless the 2nd and 3rd respondents are restrained, they may deal with his land adversely and perhaps interfere with its registration status.

4. The application is opposed through a replying affidavit of Caroline Kerich, a Director of the 1st respondent, sworn on 31/2/2025, denying interference or dealings with the suit property for the last 19 years, after the transfer of the land on 1/12/2006 to the 2nd and 3rd respondents. It denied breaching the applicant’s land rights to the suit property. The 1st respondent deposed that the said transfers to the 2nd and 3rd respondents were pursuant to and after completion of the agreement dated 20/11/2006, where the two purchased the suit property for and on behalf of the 82 beneficiaries, going by a letter attached as CK'1', forwarding the completion documents to the 2nd and 3rd respondents' advocates.

5. The 1st respondent deposes that after the completion process, it gave out vacant possession of the land to the 2nd and 3rd respondents and other purchasers, including the applicant herein, who has been aware of the facts, that the obligation was on them to register the transfer at the land’s registry in 2007, so as to extinguish the 1st respondent’s title or interest in the suit property.

6. Again, the 1st respondent deposes that it lost interest or land rights in the land to the purchasers from 2018, when 12 years expired from 2006; hence, the applicant and the 2nd and 3rd respondents became owners of the land by virtue of adverse possession. The 1st respondent deposes that given the foregoing, the suit against it is misconceived and an abuse of the court process, and the applicant is estopped in law in enjoining it to the suit alleging breach of land rights.

7. The 2nd and 3rd respondents opposed the application through a replying affidavit of Prof. John Krop Lonyangapou sworn on 28/1/2025. It is deposed that the applicant has not been in the country between 2013 to 2022, up to and including 28/10/2024, to have sworn the supporting affidavit; hence, it amounted to perjury and that he equally could not have been in possession and occupation of the land.

8. Further, the 2nd and 3rd respondents depose that there was no written agreement between the 1st respondent and the 2nd and 3rd respondents; hence, the applicant was not privy to the negotiations and the nature of the transactions respecting the agreement dated 20/11/2006. The 2nd and 3rd respondents depose that there is an active suit over the subject matter as per a judgment in Kitale ELC Petition No. 3 of 2017, attached as JKL'3'.

9. The 2nd and 3rd respondents depose that they have no intention of reducing the acreage of the disputed portion, for they are not yet registered as proprietors of the land to be able to exercise the said powers, which is yet to be subdivided or surveyed, with defined boundaries. They aver that the applicant has not met the ingredients to be entitled to injunctive orders.

10. In the 2nd application dated 29/11/2024, Charles Opondo Ochieng, Nick Musungu, and Boniface Makokha Telewa seek to join the suit as interested parties on the basis that they were the petitioners in ELC Petition No. 3 of 2017 and have an interest in the suit parcel of land originally parcel No. LR 2046 comprised in Certificate No. IR 318/1, which gave rise to the land that the applicant is claiming.

11. Further, the intended interested parties depose that the 1st defendant herein was the 3rd respondent, while the 2nd respondent was the interested party in the said petition, whose judgment was delivered on 3/5/2021, partially finding that the intended/interested parties' rights had been violated. The proposed interested parties depose that they were dissatisfied with the judgment and filed a Court of Appeal, Eldoret Appeal No. E001 of 2022. The intended interested parties have attached a copy of the intended petition; green card; replying affidavit; judgment, and copy of memorandum of appearance as annexures marked CO1, 2, 3, 4, and 5, respectively.

12. The plaintiff opposes the 2nd application through grounds of opposition dated 30/1/2025. It is pleaded that the interests of the intended interested parties can only apply if they succeed in the appeal; the court cannot venture into a question of whether the appeal is arguable, the plaintiff has no nexus with them by way of a contract or otherwise, and the application is an abuse of the court process.

13. In a supplementary affidavit sworn on 21/2/2025, the plaintiff deposes that the photographs attached to the replying affidavit by the 2nd and 3rd defendants relate to his homestead on the 26 acres in question, which he constructed a while ago and which John Poriot, a proxy of the 2nd defendant now claims to be theirs.

14. The plaintiff deposes that although he has been living in the USA, his agents are the ones living, occupying, and utilizing his homestead on the suit land, which is 26 acres, for close to 26 years. The plaintiff deposes that Section 4 of the Oaths and Statutory Declaration Act, as advised by his advocates, envisages both physical and virtual appearance before the commissioner, just as it is happening in our courts today; hence, the allegations by the 2nd respondent are mere speculations.

15. The plaintiff deposes that as confirmed by the 2nd and 3rd defendants, he was among the purchasers who took physical possession of the portions of the land in question as per the relevant application and affidavits sworn on 26/8/2019 and 13/5/2019, annexed as NOKA-1A, 1B, and 1C; hence the 2nd and 3rd defendants are estopped in denying the said facts.

16. Similarly, the plaintiff deposes that the area chief is new in office and, hence; incapable of being conversant with the history and the affairs of the matter. The plaintiff deposes that the 2nd defendant intends to hive off some portion of his land and give it to John Poriot, who has deposed the affidavit dated 28/1/2025.

17. The plaintiff deposes that the 2nd defendant has committed perjury, in view of the previous affidavit in Petition No. 3 of 2017. The plaintiff further deposes that the affidavit of the 1st defendant corroborates his case, save that he had not been aware that the 1st defendant had executed transfer forms in favor of the 2nd and 3rd defendants, which were never acted upon; hence, the 1st defendant remains the registered owner of the suit property, and therefore, it is properly sued and remains a central party to the case.

18. The two applications were canvassed by way of written submissions. The applicant relies on written submissions dated 21/2/2025. It is submitted that he has met the ingredients to be entitled to interim orders of injunction as held in Usikimye CBO & Others v Chebochok & Others, LSK & Others (IP) (Constitutional Petition E006 of 2024) KEHC 10121 [KLR] and Giella v Cassman Brown & Co. Ltd (1973) EA 358, due to the corroboration of his factual evidence by the 2nd and 3rd respondents in their affidavits in reply that he was among the 82 persons who had purchased and taken possession of the suit parcel and has structures on it. Further, the plaintiff submits that he stands the likelihood of suffering prejudice if the threatened subdivision occurs, with the apparent mischief from the 2nd respondent, as can be discerned from the replying affidavits.

19. The 1st respondent relies on written submissions dated 7/3/2025. It is submitted that the suit against it discloses no cause of action, is misconceived, and unsustainable in law. Relying on Auto Garage & Others v Motokov [1971] EA 514, the 1st respondent submits that the three essentials of disclosing a cause of action namely; the plaintiff enjoyed a right, the right has been violated and the defendant is liable, were missing in the plaintiff's plaint. Having handed over the completion documents to the 2nd and 3rd respondents on the promise that they would register them at the lands office, which unfortunately had not happened, the 1st respondent urged the court to find no cause of action disclosed against it. The 1st respondent submits that the applicant now seeks to benefit from the said default or breach in order to sustain his case, even after obtaining the title by virtue of adverse possession.

20. In addition, the 1st respondent submits that it has not violated or interfered with the applicant’s suit land for over 18 years, and in the absence of evidence of such violation, liability cannot attach or arise against it. The 1st respondent submits that the suit is a nullity and, therefore; the applicant cannot obtain any adverse orders against it. Further, the 1st respondent invokes Order 1 Rule 10(2) of the Civil Procedure Rules for the court to order that its name be struck out of the suit.

21. The 2nd and 3rd respondents rely on written submissions dated 24/2/2025. They submit that the applicant has committed several criminal offenses, including uttering a false document; hence, he has a tainted hand before the court. The 2nd and 3rd respondents submitted that though they bought the land, the transfer was yet to take place. Reliance is placed on Sections 5 and 11 of the Oaths and Statutory Declaration Act (Cap 15), that the affidavits by the applicant are false, due to the verification by John Poriot that the deponent has been out of the jurisdiction and has never resided on the land. Reliance was placed on CMC Motors Group Ltd v Bengeria Arap Korir T/A Marben School & Another [2013] eKLR, that both the originating summons and the notice of motion are incompetent.

22. As to the ingredients of a temporary injunction, the 2nd and 3rd respondents submit that the applicant has not met the test. Reliance was placed on Francis Jumba Enziano & Others v Bishop Philip Okeyo & Others NRB HCCC No. 1178 of 2007, Mrao Ltd v First American Bank of Kenya & Others [2003] eKLR.

23. In this case, the 2nd and 3rd respondent submit that the applicant has not made full disclosure; he has misrepresented material facts; his claim is farfetched; the allegations and accusations have not been substantiated through evidence; the documentary evidence is scanty and incapable of supporting his case; he has suffered no prejudice, loss or harm for he has not been on the land and has not disclosed all material facts as held in the Owners of Motor Vessel "Lilians" v Caltex Oil (K) Ltd C.A No. 50 of 2019. The 2nd and 3rd respondents submit that the applicant has not established that the balance of convenience tilts in favor of issuing the injunction, for he has no evidence of occupation or possession, he has never resided thereon, the boundaries of the 26 acres have not been provided through evidence, and the issuance of the injunction at this stage could prejudice them for they have a legitimate interest on the land.

24. The power of the court to grant a temporary injunction is discretionary in nature. A party seeking such discretion must show that he has a prima facie case with a probability of success at the hearing, establish that he stands to suffer irreparable loss, and lastly; that the balance of convenience tilts in favor of granting the orders ought. See Giella v Cassman Brown Co.(supra). In Nguruman Ltd v Jan Bonde Nielsen & Others [2014]KECA 606 [KLR], the court observed that the three pillars on which the foundation of any order of injunction must be applied as separate, distinct, and logical hurdles, which an applicant is expected to surmount sequentially.

25. As to a prima facie case, the court cited Mrao Ltd (supra) that, it is one in which, on the material presented for the court, a tribunal appropriately directing itself will conclude that there exists a right which has apparently been in infringed by the opposite party to call for an explanation or rebuttal from the latter.

26. Irreparable damage refers to one which cannot be adequately remedied or quantified in monetary terms, in the absence of an injunction. Speculative injury will not suffice. It must be more than unfounded fear or apprehension on the part of the applicant. It must be actual, substantial and demonstrable.

27. Concerning the balance of convenience, the court in Paul Kipchirchir Kogo v Franck Kimeli Tenai [2018] KEELC 2424 [KLR] defined it as that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiffs would be more significant than that which would be caused to the defendant if an injunction is granted, but the suit is ultimately dismissed. In Jennifer Akinga Osodi v Boniface Okumu Osodi & Others [2021] KECA 465 [KLR], the court observed that an order of injunction was necessary to preserve the suit property; otherwise, if not preserved, it was likely to be dealt with adversely, so that the substratum of the appeal becomes lost rendering the same nugatory.

28. In Sharif Abdi Hassan v Nadhif Jama Adan [2006] KECA 268 [KLR], the court cited Kamau Mukuha v The Ripples Ltd Civil Appeal No. Nai 186 of 1992, that a party, as far as possible, ought not to be allowed to retain a position of advocating that which it obtained through a planned and blatant unlawful act. Further, the court cited Jas Super Power Coach & Carry Ltd v Nairobi City Council & Others C.A. No. 111 of 2002, that it is the trespasser who should give way pending the hearing and determination of the dispute, for a wrongdoer cannot keep what he has taken because he could pay for it.

29. On whether the three pillars have been met or established, the court does not conduct a mini-trial. The burden is on the party seeking the injunction to show a clear and unmistakable right to be protected, which is directly threatened by an act sought to be restrained. In Nguruman Ltd v Jan Bonde Neilsen (Supra), the court noted that the invasion of the right has to be material, substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. The court said that all that the court is to see is that, on the face of it, the person applying need not establish title and that it is enough if he can show that he has a fair and bona fide question to raise, as to the existence of the right which he alleges.

30. Applying the foregoing case law to the instant case, what the plaintiff is claiming in the main suit is that his occupation and possession of the suit land was permissive entry due to a sale agreement and has been exclusive, open and continuous for over 12 years; hence extinguishing the title of the valid owner under Section 38 of the Limitation of Actions Act. The applicant blames the 2nd and 3rd respondents for purporting to take away 5 acres out of his 26 acres of land, yet they are the ones who have failed to subdivide and transfer his portion.

31. The registered owner of the land, who is the 1st respondent, does not deny the possession, occupation, and sale of the land to the 2nd and 3rd respondents over 18 years ago. On the contrary, it admits that its claim to the land has actually been extinguished by operation of law, due to the dispossession and discontinuance of possession by the plaintiff among other purchasers of the land, which, unfortunately, despite the execution of the transfer and the forwarding of the completion documents, the 2nd and 3rd respondents refused, neglected or omitted to register the transfer over 18 years ago.

32. The 2nd and 3rd respondents on the other hand, deny that the applicant has any rights to the land or that his rights have been threatened with violation since he has not lived or been in the country since 2013. The applicant, on the other hand, takes the view that the 1st, 2nd, and 3rd respondents are estopped in law from changing goalposts as to his rights to the land in view of past replying affidavits sworn on 26/8/2019 and 13/5/2019 by John Poriot and Prof. John Krop Lonyangapou. In the supplementary affidavit, the applicant has attached annexures J1, 2(a), (b), and (c), in which the applicant is listed as a beneficiary of 26 acres of the suit land.

33. The doctrine estoppel operates as a principle of law that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person as held in Seascape Ltd v Development Finance Co. of (K) Ltd [2009] eKLR.

34. The 1st, 2nd, and 3rd respondents cannot blow hot and cold, approbate and reprobate. See Okiya Omtatah Okoiti v KPLC & Others [2019] KECA 896 [KLR]. The 2nd and 3rd respondents cannot renege on their earlier affidavit on oath that the applicant is a beneficial owner of the suit land who has a homestead therein. The applicant has confirmed that the photographs in the affidavit by John Poroit depict his homestead and other developments on the suit land. Therefore, my finding is that the applicant’s rights to the land have not only been established but also confirmed by the respondents. He has both actual and constructive possession of the 26 acres.

35. As to irreparable loss and damage, the applicant’s averments that he contributed towards the acquisition of the land have not been refuted. The beneficial ownership of the suit land is evident in the list of 83 persons with defined acreage to the land, which the 1st respondent has confirmed was sold and transferred to the 2nd and 3rd respondent as trustees of the purchasers. The rights which the applicant seeks to enforce are not registered in the titles register. They are recognized under Section 28(h) of the Land Registration Act and under the Limitation of Actions Act. See Mtana Lewa v Kahindi Ngala Mwagandi [2016] eKLR. The official search certificate shows that the 1st respondent is yet to pass the title to the 2nd and 3rd respondents. I find that the applicant was in order on account of Sections 7, 13, 17, 37, 38, and 41 of the Limitation of Actions Act, which requires that one sues the registered owner of the land. The registration of the land does not, therefore, relief a trustee of his fiduciary duties under Section 28 of the Land Registration Act.

36. In Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 [KLR], the court observed that registered land is subject to overriding interests, including those relating to the Limitation of Actions Act. The court cited Public Trustee v Wanduru Ndegwa [1984] eKLR, that the Land Control Board has no application where the claim to title is by operation of law and, therefore, Section 6(2) of the Land Control Act does not prohibit a court from exercising its equitable jurisdiction to declare that a party holds land in a fiduciary capacity. Further, the court observed that all persons put in possession by the proprietor and claiming an equitable interest cannot be in occupation illegally, pending the determination of the nature and extent of their equitable rights by the court.

37. From the foregoing, I think the applicant has demonstrated that he will suffer irreparable loss and damage, if he is evicted from the suit land or his land is given to a third party to occupy or use before the formal transfer is effected. The lesser risk, in my view, is to preserve the prevailing status of the suit property regarding the 26 acres that the applicant has been occupying. In American Cynamid Co. Ltd v Ethicon Ltd [1975] ALL ER 504, the court observed that where parties appear to be evenly balanced, measures should be taken to preserve the status quo. See Mugah v Kunga [1988] KLR 748. It would be more proportionate and appropriate therefore, to maintain the prevailing status quo without prejudicing either party.

38. The balance of convenience tilts in issuing such an order. The upshot is that a temporary order of injunction shall issue, barring and restraining the defendants, their agents, servants, and/or any other person(s) claiming interest or acting through the defendants from undertaking any transactions or dealings of whatever nature, including subdividing, transferring, charging, selling, leasing, entering, encroaching or trespassing onto or altering the boundaries forming 26 acres of land occupied by the plaintiff in Land Parcel No. Kwanza/Namanjalala Block 4/3 and/or in whatever other way interfering with the plaintiff's quiet possession of the 26 acres or his interest in the said 26 acres until the substantive suit is heard and finalized.

39. On the question of joinder of interested parties, in Kingori v Chege & Others [2002] 2 KLR 243, the court observed that parties cannot be added so as to introduce a new cause of action or to alter the nature of the suit. The court went on to say that in the case of a defendant, there must be a right to some relief against him in respect of the matter, and secondly; his presence should be necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. The court said that a proper party has a defined, subsisting, direct and substantive interest in the issues arising in the litigation, which interest will be recognized in the court of law, being an interest that the court will enforce.

40. The principles to consider in an application for Joinder were considered in Pravin Bowry v John Ward & Another [2015] eKLR. The court cited Deported Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 E.A. 55 as well as Civicon Ltd v Kivuwatt Ltd & Others [2015] eKLR, that the power on joinder is discretionary, to be exercised judiciously in order to bring on record a person who is party to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without protraction, inconvenience and to avoid multiplicity of proceedings. The court said any party affected by the pending litigation is a necessary and proper party who should be enjoined. The court said that the party has to demonstrate sufficient interest in the matter, which need not succeed at the end of the trial.

41. In Zephir Holdings Ltd v Mimosa Plantation Ltd & Others [2014] eKLR, the court said that a proper party is impleaded in the suit and qualifies as the threshold of a plaintiff or defendant under Order 1 Rules 1 and 2 of the Civil Procedure Rules, or as a third party or as an interested party, and whose presence is necessary or relevant for the determination of the fundamental matter in dispute or to enable the court wholly and effectually settle the question involved in the matter.

42. Order 1 Rule 1 and 10 and Order 8 Rule 5 of the Civil Procedure Rules relate to a common question of law or fact, a right to relief in respect of or arising out of the same act or transaction, or necessity of the party to enable the court ultimately and effectually settle all questions in the suit. The interested parties are seeking to be joined as interested parties. An interested party is defined in Black's Law Dictionary, 8th Edition, as one who has a recognizable stake. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), defines an interested party as one with an identifiable stake or legal interest or duty in the proceedings before the court.

43. In Francis Karioko Muruatetu & Another v Republic & Others [2016] eKLR, the court cited with approval Trusted Society of Human Rights Alliance v Mumo Mutemu & Others [2014] eKLR that an interested party is one who has a stake in the proceedings, likely to be affected by the decision of the court when it is made, either way; and feels that their interest will not be well articulated unless he appears in the proceedings to champion his cause.

44. In CCK & Others v Royal Media Services Ltd & Others [2014] eKLR, the principles in an application for the inclusion of an interested party were also set out. The court cited Meme v Republic [2004] 1 EA 124, that joinder of a person is because his presence will result in complete settlement of all questions involved in the proceedings, joinder will protect the rights of a party who could otherwise be adversely affected in law, and joinder will prevent a likely course of proliferated litigation. Further, in Kenya Medical Laboratory Technician & Technologist Board & Others -vs.- Attorney General & Others [2017] eKLR, Mativo J, as he then was, observed that the test is not whether the joinder of a person proposed to be added as an interested party would be according to or against the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the course of action averred by the petitioner. The test, according to the court, is whether the intended interested party has an identifiable stake or a legal interest or duty in the proceedings. The court said that in determining whether or not an applicant has a legal interest in the subject matter sufficient to entitle him to be joined, the test lies not so much in an analyzing of the nature of the applicant's rights, but instead, in what would be the result on the subject matter of the action if those rights could be established.

45. In Francis Muturatetu v Attorney General (supra), an interested party is required to set out the personal interest or stake in the body of 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 intended interested party in case of non-joinder must also be demonstrated to the satisfaction of the court. Lastly; the applicant must set out in the application the case and or submissions he intends to make before the court and demonstrate the relevance of that case. In Methodist Church of Kenya v Mohammed Fugicha & Others [2019] eKLR, the court warned that whether some parties are joined as interested parties or not, the issues for the court's determination remain the issues presented by the principal parties or as framed by the court from the pleadings.

46. Having set out the law on joinder and who is an interested party, it is worth noting that the claim by the plaintiff against the defendants is solely based on adverse possession of 26 acres of the suit land out of a sale agreement dated 20/11/2006. The intended interested parties were not parties to the sale agreement. They are not on the list of the 83 members who are the beneficiaries of the 302. 59 Ha, forming part of the sale agreement. The intended interested parties are not the registered owners of the suit land as per the official search certificate dated 16/10/2024, showing that the 1st defendant was issued with a title deed on 23/8/2002. The proposed interested parties allege their interest or stake in the suit land out of a judgment delivered on 3/5/2021, and now subject to an appeal where they were claiming an interest in LR No. 2046, comprised of Certificate No. IR 318/1 that gave rise to the land now registered under the 1st respondent’s name and to which the applicant now claims only 26 acres. The proposed interested parties have not shared with this court any decree of the court declaring their legitimate rights on the land defined by the applicant as 26 acres, which he has occupied for over 12 years, to the exclusion of the registered owner. The intended interested parties have not set out their claim in the application and the supporting affidavit, on what exactly they are claiming regarding the 26 acres of land that the respondents have admitted formed part of the purchased land, totaling 302. 59 Ha in 2006. The proximity of the intended interested parties’ alleged stake or interest in the 26 acres of land is missing. The proposed defense or claim or interest by the intended interested parties, is not clear, specific, and direct to the subject matter in this suit. How the intended interested parties, who are now three, unlike the many petitioners in the appeal case, have a designated interest or stake separate from those in the pending appeal is unclear. The intended interested parties cannot purport to represent the many appellants without the authority to do so. The relief or defense or otherwise which they intend to raise and the question thereof to enable the court to entirely and effectually, determine the dispute is not evident.

47. My finding is that the intended interested parties have failed to meet the threshold set in the cited case law to be joined in this suit. I agree with the plaintiff that the application lacks merit. It is dismissed with costs.

RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 26TH DAY OF MARCH 2025. In the presence of:Court Assistant - A. EbenyoWere for Musungu for the Intended Interested Party presentKutei for Kwame for 4th Respondent presentOtieno for Oyata for the 1st Defendant presentMutai for 2nd and 3rd Respondents presentKatama Ngeywa for the plaintiff absentHON. C.K. NZILIJUDGE, ELC KITALE.