PHILIP OTIENO AWUOR VS THE HON ATTORNEY GENERAL AND THE LAND REGISTRAR RACHWONYO

1. The 3rd Defendant filed the instant application dated 30th January, 2025 seeking the following orders:
1. Walter Mboya Onyango be joined as a third defendant herein.
2. The costs of this application and the suit be borne by the plaintiff.
2. The application was supported by the grounds set out and the affidavit of Walter Mboya Onyango sworn on 30th January, 2025. He stated that the present dispute was fully adjudicated upon in Kisumu Civil Case No 17 of 2008 where the deceased Plaintiff’s father had claimed that the land parcel Kabondo/Kodumo East/294 (plot 294) did not share any physical boundary with Kabondo/Kodumo East/293 (plot 293). He further stated that the court gave him vacant possession of plot 294 about which he has since commenced execution through institution of Succession Cause 49 of 2019 in Kisumu to the Plaintiff’s brother Elisha Juma Awuor (deceased).
3. He went on to state that in relation to the late Peter Awuor Miyawa’s plot 293, there was need for the Plaintiff’s deceased’s brother to assume Letters of Administration over the deceased’s Plaintiff’s father’s estate to enable the Land Registrar demarcate the boundary between the two plots so as to give effect to the decree.
4. He added that the deceased’s Plaintiff’s brother had been reluctant in facilitating the process of demarcation of the boundary. He also stated that the family of the deceased’s Plaintiff appointed Joshua Awour and brother to the Plaintiff as administrator’s ad litem. He stated that Joshua Awour has filed numerous appeals in Kisumu which latest one was withdrawn by the Plaintiff’s brother Joshua Omondi Owour.
5. He added that given the Plaintiff’s refusal to vacate plot 294, he has reasons to believe that the same were plans by the Plaintiff’s family to further delay the process of demarcation to give effect to the decree. He stated that he was a necessary party with a stake in the proceedings as the orders in this suit would directly affect him if granted in the form sought by the Plaintiff.
6. He stated that he would be greatly prejudiced if he was prevented from advancing a defence to this claim since his status as a decree holder would be eroded.
Response
7. Counsel for the Plaintiff filed his grounds of opposition dated 8th March, 2025 on the following grounds:
1. THAT this application is an abuse of the Court process as the same is brought against the Plaintiff who is the Administrator Ad Litem to the Estate of PETER OTIENO AWUOR who is the undisputed sole registered owner of the suit land being KABONDO/KODUMO EAST/293 while it is on record from the pleadings filed by the Plaintiff herein in this case that he is only seeking to correct the records held by the land registrar and this case has not mentioned land parcel No. KABONDO/KODUMO ESAST/294 which belongs to the Intended 3rd Defendant.
2. THAT the Intended 3rd Defendant has misconceived the facts and the law since the suit before this Court is not claiming any land nor is it a boundary dispute as alleged by the Intended Third Defendant but only seeking to correct the records held by the Land Registrar.
3. THAT the Intended 3rd Defendant’s claim is not grounded on facts as he is arm twisting the current facts; the suit before the Court is not concerned with any claim of land between land parcel No. KABONDO/KODUMO EAST/293 and KABONDO/KODUMO EAST/294 neither is it alleging any boundary dispute between the two parcels of land.
4. THAT the Intended 3Rd Defendant’s application lacks merit since he has miscomprehended the provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules which states as follows;
“(2) 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.”
5. THAT a propose to paragraph 4 above, the conjunction “AND” is used between “…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…”; a Defendant can only be substituted where a Primary Defendant to the suit is being struck out of the suit and is being a replaced with another for example an agent being replaced by a Principal in a case such as in substituting a company employee with the company itself where the Plaintiff had erroneously sued a company worker instead of a company, perhaps where such a Plaintiff was not privy to the existence of such a Principal, but it is wrong to bring yourself as a Defendant to Court without being sued first by the Plaintiff.
6. THAT owing to the circumstances of this case, this application is not proper as the Intended 3rd Defendant cannot bring himself to the case as he was never sued, but he could have applied to join the suit as an Interested Party but not as a Defendant; a Defendant must be sued or can only substitute an existing Defendant as explained under Order 1 Rule 10 (2) of the Civil Procedure Rules.
7. THAT the Intended 3rd Defendant has not explained by way of affidavit which role he intends to play in this suit which concerns itself with correction of records held at the lands office (government office) since the Intended 3rd Defendant does not work at the lands office neither is he a custodian of any lands records and he therefore he has no role to play in the current case which concerns itself with only correction of the lands (government) records.
8. THAT the Intended 3rd Defendant’s claims are anticipatory and premature since he is only apprehensive that should the Plaintiff herein succeed in his correction of the land records then the Plaintiff might claim some land on the ground later. This fear is unfounded since if the Court allows the Plaintiff’s suit and the Plaintiff decides to claim land later on the ground, the Plaintiff will file another case and serve the Intended 3rd Defendant herein at his door step, which is still anticipatory; but right now, based on the orders being in the Plaint for correction of the records held by the land registrar, the Intended 3rd Defendant should hold his horses and wait for a case of land claim or boundary dispute.
9. THAT the Intended 3rd Defendant has not demonstrated through his affidavit irreparable loss, if any, that he is likely to suffer if the orders he is seeking are not granted.
10. THAT granting the orders sought would be inimical to justice in the circumstances of this case.
Submissions
8. On the part of the Applicant counsel filed his submissions dated 15th July, 2025. He relied on Order 1 Rule 10(2) and Rule 3 of the Civil Procedure Rules. He submits that the dispute, which is the subject matter of the suit was fully adjudicated upon in Kisumu Civil Case No. 17 of 2008 where the original Plaintiff, Peter Awour Miyawa, now deceased sought a declaration that Land Parcel No. Kabondo/Kodumo East/293 (plot 293) owned by the Plaintiff’s deceased father, measured approximately 18.1. acres (7.2. ha) as shown on the certificate of title issued to the plaintiff’s deceased father on 10th December, 1971 and not 4.8ha (8acres) as shown in the certificate of official search dated 2nd September, 1994.
9. The Judgement in the High Court case, which dismissed the suit by the plaintiff’s deceased father, awarded the applicant vacant possession of plot 294. He added that this was to facilitate the necessary further litigation in the High Court case by execution proceedings against the legal representative of the registered proprietor of plot 293, which parcel was now the subject matter of the suit before this court seeking the same or substantially the same relief as was sought in the claim by the Plaintiff’s deceased father, dismissed in the High Court.
10. He cited the Court of Appeal case of Civicon Limited V Kivuwatt Limited & 2 others [2015] eKLR. He submits that failure and/or refusal to vacate plot 294 despite being ordered to so do by the High Court and in the continued unlawful occupation, the Applicant has sound reasons to be apprehensive that there are plans by the Plaintiff’s family to further delay the exercise of demarcating the boundaries of plot 293 and plot 294 to give effect to the decree of the High Courts. He submits that this suit appears to be part of the plans to frustrate the process.
11. He urged the court to exercise its discretion and include the Applicant as a 3rd Defendant on the grounds that the orders which the Plaintiff seeks, if granted, shall greatly prejudice the Applicant if he is not heard.
12. Counsel for the Plaintiff filed his submissions dated 17th March, 2025 wherein he identified one issue for determination which is whether the intended 3rd Defendant WALTER MBOYA ONYANGO had satisfied the prerequisite requirements to be added as a Defendant in this suit. He relied on Order 1 Rule 10 (2) of the Civil Procedure Rules and the case of SUPERIOR HOMES (KENYA) LTD V EAST AFRICAN PORTLAND CEMENT CO LTD; MUTEMI & 2 OTHERS (APPLICANT) (SUING AS THE OFFICIALS OF AIMI MA LUKENYA SOCIETY) (ENVIRONMENT & LAND CASE 6 OF 2022) [2023] KEELC 21025 (KLR). It was his submission that the Applicant ought to demonstrate what interest he has in such suit owing to the issues arising from the pleadings filed by the primary parties.
13. He submits that the Plaintiff seeks to correct the records held by the Land Registrar so that the land parcel KABONDO/KODUMO EAST/293 can read 7.2Ha and not 4.8Ha on paper. He argues that the Applicant has no role to play in the correction of the records as that is the mandate of the Land Registrar.
14. He further submits that for an Applicant to be added as Defendant, he ought to be a person whom the Plaintiff can seek his redress from. He urged the court to take the issues in controversy to be the issues raised in the Plaint.
15. It was counsel’s submission that the Applicant has failed to demonstrate the interest he has in the pending suit or what remedy he can offer to the Plaintiff so that he can be made a Defendant.
16. He also submits that if the Applicant has a different issue with the Plaintiff, he could file another suit against the Plaintiff which will be heard and determined in that other suit.
17. Lastly, on the part of the Respondent, counsel submits that an Applicant can only be added as Defendant if he has knowledge and is privy to the pending issues before the Court. He added that the Applicant did not have knowledge of the lands records. He relied on the case of BURU V FOSHAN SHENGFENG CERAMIC TRADING CO LTD & 2 OTHERS (CIVIL SUIT 44 OF 2018) [2023] KEHC 18575 (KLR) and urged the court to dismiss the application with costs to the Plaintiff.
Analysis and determination
18. The instant application is made by an individual who prays that he be added as a 3rd Defendant to the proceedings herein. This court has considered the application, the law and the submissions of the parties. Since the instant application has been made before the suit proceeds for hearing, and Order 1 Rule 10 provides that a party who is a Plaintiff or Defendant may, at any stage of proceedings, be struck out, and the name of one who whose presence is necessary be added, this Court is of the view that the main issue for determination is whether the proposed 3rd Defendant ought to be joined to this suit. Incidental to that is who to bear the costs of the application.
19. At the outset it is worth emphasizing that Order 51 Rule 14 (1) of the Civil Procedure Rules, 2010 provides for the manner in which a party who is served with an application and wishes to challenge it may proceed. It is to the effect that the Respondent may file a notice preliminary objection: and/or; a replying affidavit; and/or a statement of grounds of opposition. The definition of a preliminary objection is settled. Similarly, what constitutes an affidavit and the content thereof is not a matter that often causes confusion save for litigants who are not keen and at times depone on matters of law or put forth arguments rather than facts: care should be taken for parties not to do so since it constitutes a flaw in drafting. That which often confuses is what amounts to grounds of opposition.
20. Grounds of opposition do not fall in the category of preliminary objections or affidavits. They are specific reasons or justifications why an application should not be granted. While they may touch on points of law, they do not go to the root of the application as to cause it to be lost in limine. Thus, the Court has to consider them as it determines the merits of the application. For instance, they could be that there is delay in bringing the application, which is an issue that is discernible from a consideration of the application as a whole; or abuse of the process; functus officio; procedural impropriety; premature institution of the application, among others.
21. I have taken the time to consider the meaning of grounds of opposition because in the instant application the Respondent filed only a set of such. Did all the points stated amount to grounds of opposition? In my humble view, the 1st and 3rd points are factual and cannot consist grounds of opposition. That said, the law on addition, substitution or removal of parties to suits is anchored in Order 1 Rule 10 of the Civil Procedure Rules. 
22. Order 1 rule 10(2) of the Civil Procedure Rules provides as follows:
“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.”
23. In the case of Technomatic Limited T/A Promopack Company V Kenya Wine Agencies Limited & another [2014] eKLR Havelock J set out the guiding principles in enjoining a party to a suit 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.
24. It was the Plaintiff’s claim that there was need for the Plaintiff’s deceased’s brother to take out letters of administration so as to allow for demarcation of the boundaries between Kabondo/Kodumo East/294 and Kabondo/Kodumo East/293 belonging to the Plaintiff so as to give effect to the decree. 
25. It was the proposed 3rd Defendant’s case that he was a necessary party to the case since the court in Kisumu Civil Case No 17 of 2008 had granted him vacant possession of Kabondo/Kodumo East/294 being Plot number 294. It has not been denied by anyone that the said suit was filed and concluded. Further, there is no denial that the suit parcel of land, being plot No. 294 was in issue in the said parcel.
26. Further, it is also not disputed, and it is clear from Annexture WMO1 of the supporting Affidavit, that there existed civil suit No. 598 of 1994 in Kisii High Court in which the two parcels of land namely Plot No. 293 and 294 were contested as between the Plaintiff herein together with another party, one Elisha Juma Awuor and (or against) Salmon Onyango Shem and the District Land Registrar, Homabay and the Attorney General. Further, that the issues therein were, among others that parcel No. Kabondo/Kodumo East/293 measured 18.1 acres or 7.24 Ha while Kabondo/Kodumo East 294 was owned by the 1st Defendant, while also that the said parcel of land shared a boundary with parcel No 328. Among other issues also was that parcel No. 294 lay across the road, that in September, 1994 the Defendant and the lands office officials riotously (sic) proceeded to fix a boundary between parcel No. 294 and 293 thereby dividing parcel No. 293 into two plots. He gave the particulars of the fraud that he alleged was committed by the Defendant and the Lands Registry officials.  Further, he alleged that the acreage of parcel No. 293 was reduced from 18.1 Ha to approximately 4.8 Ha giving the balance to parcel No 294. He also alleged that parcel No. 294 extended to parcel No. 293 and 328. 
27. I agree with the Applicant’s submissions that for one to be added as a party he ought to demonstrate the stake he has in the matters in dispute, whichever position the court were to place him. Further, for one to be added as a defendant he should be one against whom the Plaintiff(s) can seek redress from. This is what seems to me to be the point here. When the Plaintiff seems to seek the relief which will eventually cause the acreage of the 3rd Defendant to be added to his, he should not be a mere spectator or interested party at that as the Plaintiff submits. Further, contrary to the plaintiff’s submissions and arguments, the correction of records and addition to his parcel’s size with a whooping 2.8 Ha or thereabout cannot be made in a vacuum: that must either affect the existing boundaries of the neighbouring plots or distort the records either in vain or act as a timebomb for future disputes. To prevent that, all parties who are necessary to the instant dispute must be added in the instant suit.
28. The Plaintiff contended that addition of a party in any matter, in terms of Order 1 Rule 10(1) of the Civil Procedure Rules is to be granted only where a party’s name is being struck out. He drew his argument from an interpretation of the Rule based on the term “and” which is used in the provision. He raised the ground as a reason to deny the application but he failed to submit on it to demonstrate how that would fail to be the case.
29. I have carefully considered the content and import of the provision. The Court, on its own motion, or on an application by a party may strike out or add a party to a suit on terms it thinks just, where it is of the view that addition of a party is necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit it will proceed to do it. In my humble view, this step is not dependent on the striking out of a party such that it the addition acts as a replacement thereof. To think narrowly like that and limit such action to that would mean that parties to suits would restrict judges and judicial officers from determining all matters in controversy at once and it would place the judicial discretion and interests of justice at the mercy and whims of parties.  
30. A cursory look at the Plaint in the instant suit as compared with the summary of the Plaint, annexture WMO1 above, which I have summarized shows that the issues in the former suit are squarely and clearly the same ones in issue in the instant matter. There is no way the proposed correction of the register as a relief sought in the instant matter can stand alone to the exclusion of the involvement of the records and ground extent of parcel/ Plot No. 294. Those are conjoined twins. Thus, for the applicant to argue that he is only aiming a correcting the records at the lands registry is a slap on the face of the court that handled the previous matter alluded to and would exclude a necessary party from the proceedings herein.
31. This court has keenly perused the judgment in Kisumu Civil Case No 17 of 2008 and it is not in dispute that the court found that the Plaintiff’s brother Elisha Awuor (deceased) had trespassed onto the 3rd Defendant’s parcel.
32. In view of the above, it is this court’s view that the suit cannot be conclusively determined with the exclusion of the proposed 3rd Defendant. It is also my view that the Plaintiff does not stand to suffer any prejudice if the proposed 3rd Defendant is joined as a party.
33. From the principles set out in Order 1 Rule 10 of the Civil Procedure Rules as well as the case of Technomatic Limited (supra), this court is satisfied that the proposed 3rd Defendant meets the threshold under grounds 3, 4 & 5 above.
34. Consequently, I find that the proposed 3rd Defendant has an identifiable stake in the suit and therefore a necessary party to enable this court reach a just determination. He is actually more than a necessary party, if the issues in the two suits are anything to go by, particularly when fraud was alleged as far back as 1994 in the previous matters and yet the instant suit alleges that it was discovered in the year 2017 which is misleading and the court wonders whether it was not intended to beat the Limitation of Actions Act provisions. This fact which is verified by an affidavit, to me, does not comport with the truth. 
35. The upshot is that the application succeeds. However, it appears that the applicant was overzealous in his quest for costs that he prayed for those of the suit also as if the suit had been determined. Parties should never be “sneaky” in all respects. That part of the prayers is rejected outrightly. Thus, this court makes the following orders: 
a) The proposed 3rd Defendant is joined to this suit as the 3rd Defendant.
b) The Plaintiff is directed to amend his Plaint, within seven (7) and state his claim, if any, in terms of or along the order of joinder made herein, against all the three defendants and serve the parties within that time.
c) In default of compliance with prayer (b) above, the 3rd Defendant is granted 14 days (from the lapse of the seven days granted to the Plaintiff) to file and serve his pleadings, including any Counterclaim if need be, together with witness statements and documents.
d) Upon service of any pleadings, the Defendant, if order (b) is complied with, or the Plaintiff, if there is failure to comply with order (b) above, and 1st and 2nd Defendants are granted 14 days to file and serve their pleadings, witness statements and documents in response to the pleadings filed.
e) The Respondent/ Plaintiff is to bear the costs of this Application.
36. This suit shall be mentioned on 23rd September 2025 to confirm closure of pleadings and move to the stage of compliance with Order 11 of the Civil Procedure Rules.
37. It is so ordered.
Ruling dated, signed and delivered virtually via the Teams Platform this 30th day of July 2025.
Hon. Dr. iur Nyagaka,
Judge
In the presence of,
I. Okero Advocate for the Applicant
Orego Advocate for the Respondents
Alongside Osoro for the Respondent