1 By a Notice of Motion application referred above, the interested party Matilong Ole Koipatek, sought to be admitted as such in this matter on the grounds that he is the brother of John Ole Tinkoi to whom these proceedings relating to presumption of death concerns.
2 It is contended that Christine Mueni by fraudulent means had the name of his late brother inserted in her National Identification Card and used her status to have land known as Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 and Kjd/Dalalekutuk/4888 transferred to her from Sajiloni Group Ranch.
3 It is averred that the suit filed by the Christine Mueni in ELC 767 OF 2017 seeking cancellation of titles in respect of the above three parcel of land were dismissed. The intended interested party deposed that the Environment and Land court made declarations invalidating the fraudulent registration of the applicant in respect to Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 and Kjd/Dalalekutuk/4888.
4 The intended interested party contend that the applicant was not the wife of the late John Ole Tinkoi and her intention is to obtain ownership of parcels of land from the group ranch by fraudulent means. The intended interested party stated that he was the brother of the deceased and has direct substantial interest in the outcome of these proceedings as he is in the actual occupation of Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 which is a family land where he had occupational rights and that the inclusion of the interested party will assist the court in determining the matters in controversy fairly and competently.
5 The application is opposed by Christina Mueni Ole Tinkoi vide a replying affidavit dated 8th august 2025. It is agued that the intended interested party application to participate in the proceedings is an afterthought and that he is has no direct personal interest in the matter and in any case, he is the step brother of the deceased. Further that the interested party has his own land and wants the applicant land for the reason that the same is in close proximity to the road. The applicant also agues that the proposed interested party has not demonstrated or proved to the court the existence of any other wife to the deceased other than the applicant and has not denied the fact that the deceased had disappeared without trace hence the application for presumption of death.
6 The issue for determination is;
7 Whether the Applicant should be enjoined as an Interested Party in the proceedings herein.
8 The statutory underpinning for joinder as an interesting party is anchored in order 1 rule 10(2) of the Civil Procedure Rules 2010 which states as follows: -
i. “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 or settle all questions involved in the suit, be added.”
9 Further Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines who an interested party is;
i. “Interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation;
10 The Supreme Court of Kenya in Communications Commission of Kenya and 4 Others …Vs… Royal Media Services Limited & 7 Others Petition No. 15 OF [2014] eKLR relied on its earlier decision in the MUMO MATEMO case where the Court in defining who an Interested Party is, and held as follows:
i. “An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
(ii) Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;
(iii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iv) Joinder to prevent a likely course of proliferated litigation.
i. We ask ourselves the following questions:
a) what is the intended party’s state and relevance in the proceedings and
b) will the intended interested party suffer any prejudice if denied joinder."”
11 It is therefore important to determine whether the proposed interested party has satisfied the statutory requirement to be enjoyed in these proceedings.
12 The law on joinder of interested parties to suits has been settled by the Supreme Court of Kenya in the case of Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR, referred by the applicant. The court set out identifiable key elements for consideration in an application for joinder as an Interested Party. The elements are as follows: -
i. “a. The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii. b. 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. It must also be clearly outlined and not something remote.
iii. c. Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
13 In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR Justice Munyao Sila in dealing with the issue of an Interested Party seeking to be enjoined in a suit stated as follows;
i. “In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party.
14 A court would allow an applicant to be joined as an interested party in pending or ongoing proceedings primarily if by so doing, the court would be able to effectively settle the issue(s) in controversy and if the interested party has an identifiable claim of his own to protect alongside that of the plaintiff.
15 In the instant matter, Christine Mueni Ole Tinkoi filed an application dated 7th July 2022 seeking orders that Kipetuan Ole Tinkoi her husband be presumed dead under Section 118A of the Evidence Act and an order be issued directing the Registrar of Births and Deaths to issue death certificate to enable her petition and obtain letters of administration intestate. From the pleadings filed herein, the applicant had initially filed a suit in ELC being No.767 of 2017 seeking eviction orders against the defendants in that suit. The applicant however encountered procedural challenges in that she had not obtained letters of administration in respect of the estate of Kipetuan Ole Tinkoi and the suit was therefore dismissed. The properties the applicant sought adverse orders against the intended interested party and others are Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 which the interested party lay claim to.
16 I am not convinced that the interested party has demonstrated that it is necessary for the him to be enjoined as an interested party in these proceedings. This matter is not about the ownership of the properties registered in the name of Kipetuan Ole Tinkoi nor is it a succession cause where the court is called upon to arbitrate over the beneficiaries of the estate. The application dated 7th July 2022 is limited only to determination whether based on the material placed before the court a presumption of death order should issue. No substantive orders conferring any right or depriving one of his entitlements can issue in an application under section 118A of the Evidence Act.
17 Whether the applicant Christine Mueni Ole Tinkoi was a wife of Kipetuan Ole Tinkoi as indicated in the chief’s letter dated 15th October 2010 or not, as contended by the intended interested party is a matter that can only be determined by way of a hearing in a succession cause where the court would consider all the issues including the beneficiaries of said Kipetuan Ole Tinkoi. There cannot be any succession cause initiated without establishing that the person to whom the succession cause relate is deceased.
18 The application for presumption of death under Section 118A of the Evidence Act is not suitable to ventilate competing proprietary interest. The intended interested party does not dispute the fact that his brother had been missing since 1982. His only concern is that the applicant Christine, is not his brother wife and therefore not entitled to his shares in Sajiloni Group Ranch.
19 At this stage, the court is only required to establish whether the intended interested party has satisfied the requirement and the criteria for joinder. I am of the view, and having read the pleadings herein, the applicant has not shown direct personal interest and/or stake which is clearly identifiable and proximate enough.
20 In the circumstances, the application dated 5th November 2024 is hereby dismissed with no order as to cost.
21 I have also considered the application dated 7th July 2022 and the affidavit of Christine Mueni Ole Tinkoi together with the annexures thereto. It is clear that Kipetuan Ole Tinkoi has been missing for over 40 years. This fact is not denied by the Matilong Ole Koipatek in his filings.
22 In the circumstances, I make the following orders;
i THAT a declaration be and is hereby issued that KIPETUAN OLE TINKOI be and is hereby presumed DEAD.
ii THAT the Registrar of Births and Deaths do issue Death Certificate to Christine Mueni Tinkoi of ID NO 0087079.
iii There shall be no orders as to cost.
2 It is contended that Christine Mueni by fraudulent means had the name of his late brother inserted in her National Identification Card and used her status to have land known as Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 and Kjd/Dalalekutuk/4888 transferred to her from Sajiloni Group Ranch.
3 It is averred that the suit filed by the Christine Mueni in ELC 767 OF 2017 seeking cancellation of titles in respect of the above three parcel of land were dismissed. The intended interested party deposed that the Environment and Land court made declarations invalidating the fraudulent registration of the applicant in respect to Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 and Kjd/Dalalekutuk/4888.
4 The intended interested party contend that the applicant was not the wife of the late John Ole Tinkoi and her intention is to obtain ownership of parcels of land from the group ranch by fraudulent means. The intended interested party stated that he was the brother of the deceased and has direct substantial interest in the outcome of these proceedings as he is in the actual occupation of Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 which is a family land where he had occupational rights and that the inclusion of the interested party will assist the court in determining the matters in controversy fairly and competently.
5 The application is opposed by Christina Mueni Ole Tinkoi vide a replying affidavit dated 8th august 2025. It is agued that the intended interested party application to participate in the proceedings is an afterthought and that he is has no direct personal interest in the matter and in any case, he is the step brother of the deceased. Further that the interested party has his own land and wants the applicant land for the reason that the same is in close proximity to the road. The applicant also agues that the proposed interested party has not demonstrated or proved to the court the existence of any other wife to the deceased other than the applicant and has not denied the fact that the deceased had disappeared without trace hence the application for presumption of death.
6 The issue for determination is;
7 Whether the Applicant should be enjoined as an Interested Party in the proceedings herein.
8 The statutory underpinning for joinder as an interesting party is anchored in order 1 rule 10(2) of the Civil Procedure Rules 2010 which states as follows: -
i. “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 or settle all questions involved in the suit, be added.”
9 Further Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines who an interested party is;
i. “Interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation;
10 The Supreme Court of Kenya in Communications Commission of Kenya and 4 Others …Vs… Royal Media Services Limited & 7 Others Petition No. 15 OF [2014] eKLR relied on its earlier decision in the MUMO MATEMO case where the Court in defining who an Interested Party is, and held as follows:
i. “An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:
(ii) Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;
(iii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;
(iv) Joinder to prevent a likely course of proliferated litigation.
i. We ask ourselves the following questions:
a) what is the intended party’s state and relevance in the proceedings and
b) will the intended interested party suffer any prejudice if denied joinder."”
11 It is therefore important to determine whether the proposed interested party has satisfied the statutory requirement to be enjoyed in these proceedings.
12 The law on joinder of interested parties to suits has been settled by the Supreme Court of Kenya in the case of Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR, referred by the applicant. The court set out identifiable key elements for consideration in an application for joinder as an Interested Party. The elements are as follows: -
i. “a. The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
ii. b. 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. It must also be clearly outlined and not something remote.
iii. c. Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.”
13 In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR Justice Munyao Sila in dealing with the issue of an Interested Party seeking to be enjoined in a suit stated as follows;
i. “In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party.
14 A court would allow an applicant to be joined as an interested party in pending or ongoing proceedings primarily if by so doing, the court would be able to effectively settle the issue(s) in controversy and if the interested party has an identifiable claim of his own to protect alongside that of the plaintiff.
15 In the instant matter, Christine Mueni Ole Tinkoi filed an application dated 7th July 2022 seeking orders that Kipetuan Ole Tinkoi her husband be presumed dead under Section 118A of the Evidence Act and an order be issued directing the Registrar of Births and Deaths to issue death certificate to enable her petition and obtain letters of administration intestate. From the pleadings filed herein, the applicant had initially filed a suit in ELC being No.767 of 2017 seeking eviction orders against the defendants in that suit. The applicant however encountered procedural challenges in that she had not obtained letters of administration in respect of the estate of Kipetuan Ole Tinkoi and the suit was therefore dismissed. The properties the applicant sought adverse orders against the intended interested party and others are Kjd/Dalalekutuk/4886, Kjd/ Dalalekutuk/4887 which the interested party lay claim to.
16 I am not convinced that the interested party has demonstrated that it is necessary for the him to be enjoined as an interested party in these proceedings. This matter is not about the ownership of the properties registered in the name of Kipetuan Ole Tinkoi nor is it a succession cause where the court is called upon to arbitrate over the beneficiaries of the estate. The application dated 7th July 2022 is limited only to determination whether based on the material placed before the court a presumption of death order should issue. No substantive orders conferring any right or depriving one of his entitlements can issue in an application under section 118A of the Evidence Act.
17 Whether the applicant Christine Mueni Ole Tinkoi was a wife of Kipetuan Ole Tinkoi as indicated in the chief’s letter dated 15th October 2010 or not, as contended by the intended interested party is a matter that can only be determined by way of a hearing in a succession cause where the court would consider all the issues including the beneficiaries of said Kipetuan Ole Tinkoi. There cannot be any succession cause initiated without establishing that the person to whom the succession cause relate is deceased.
18 The application for presumption of death under Section 118A of the Evidence Act is not suitable to ventilate competing proprietary interest. The intended interested party does not dispute the fact that his brother had been missing since 1982. His only concern is that the applicant Christine, is not his brother wife and therefore not entitled to his shares in Sajiloni Group Ranch.
19 At this stage, the court is only required to establish whether the intended interested party has satisfied the requirement and the criteria for joinder. I am of the view, and having read the pleadings herein, the applicant has not shown direct personal interest and/or stake which is clearly identifiable and proximate enough.
20 In the circumstances, the application dated 5th November 2024 is hereby dismissed with no order as to cost.
21 I have also considered the application dated 7th July 2022 and the affidavit of Christine Mueni Ole Tinkoi together with the annexures thereto. It is clear that Kipetuan Ole Tinkoi has been missing for over 40 years. This fact is not denied by the Matilong Ole Koipatek in his filings.
22 In the circumstances, I make the following orders;
i THAT a declaration be and is hereby issued that KIPETUAN OLE TINKOI be and is hereby presumed DEAD.
ii THAT the Registrar of Births and Deaths do issue Death Certificate to Christine Mueni Tinkoi of ID NO 0087079.
iii There shall be no orders as to cost.