The application before court for determination is the Notice of Motion dated 21/11/2025 filed on behalf of the 1st Defendant, which was expressed to be brought pursuant to the provisions of Order 1 Rule 10 (2), Order 51 Rule 1 of the Civil Procedure Rules 2010 and Section 1A, 1B and 3A of the Civil Procedure Act.
The application seeks orders that:-
1) The Court be pleased to grant leave to the 1st Defendant to join Jyoti Atul Kumar Shah and Kunal Atul Kumar Shah, the personal representatives of the Estate of the late Atul Kumar Motichand Shah as the 3rd and 4th Defendants in this suit.
2) That upon joinder, the plaint be amended accordingly and all consequential orders do issue.
3) The costs of the application be provided for.
The grounds upon which the application was brought are that the plaintiffs are claiming ownership of land known as KISUMU/MUNICIPALITY/BLOCK 12/386 (the suit property). That the 1st Defendant bought the suit land from Atul Kumar Motichand Shah (deceased) in the year 2012. That Atul Kumar Motichand Shah died on 8/7/2024 and a petition for probate of his written Will was filed by his wife, Jyoti Atul Kumar Shah, and his son, Kunal Atul Kumar Shah, who have since been appointed as his personal representatives.
That the joinder of the personal representatives is necessary to enable the court to effectually and competently adjudicate upon and settle all questions relating to the suit property. That no prejudice will be occasioned by the proposed joinder.
The application was opposed vide the grounds contained in the Replying Affidavit of Joyce Adhiambo Mango, the 3rd Plaintiff sworn on her own behalf and on behalf of the rest of the Plaintiffs.
The plaintiffs’ case is that the application is bad in law, fatally incompetent, and ought to be dismissed on the grounds, inter alia, that the applicant, being a defendant in the suit, lacks the locus standi to join another defendant to the suit. That the plaintiffs are greatly prejudiced by the delay in the hearing and finalization of the suit and the manner in or by which the applicant seeks to add persons to a suit which was initiated by the plaintiffs.
The application was heard orally on 16/3/2026. It was submitted on behalf of the applicant that the parties sought to be joined in the suit participated in the transaction, that the joinder of the said parties shall enable the court to interrogate the validity of the transaction and the claim of ownership. That the deceased person is the one who sold the land to the applicant; hence, his estate needs to participate in the proceedings. That the joinder serves the overriding objective of the Civil Procedure.
On behalf of the Respondents/Plaintiffs, it was submitted that through the application, the Defendant is seeking to amend the plaint. That the plaintiff has the right to choose who to sue. That it is not clear that the Plaintiffs have a claim against the people sought to be joined in the suit.
That the law provides for the Third-Party proceedings procedure which should be adopted by a defendant who wishes to claim against another party in respect of the claim in the suit.
I have considered the application which was brought, inter alia, pursuant to the provisions of Order 1 Rule 10 (2) Civil Procedure Rules. Order 1 Rule 10 (2) provides for substitution and addition of parties to suits 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 to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
This provision of the law gives the court wide discretion to add or remove any party from the suit as shall be necessary to enable effectual and complete adjudication of the question before the court.
The applicant relied on the case of Emfil Limited vs Attorney General & 423 others, while the Plaintiffs cited the case of Civicon Ltd vs Kivuwatt (2015) eKLR.
The plaintiffs deny that they have a claim against the parties sought to be added in the suit; hence, the joinder is not necessary. I have considered the pleadings filed and the documents in the list of documents filed by the parties. Indeed, the green card in respect of the suit land, which is among the documents in the plaintiffs’ bundle of documents, shows that the name of Atul Kumar Motichand Shah, whose estate is sought to be joined as Defendant in the suit, appears in the history of ownership of the suit land. It shows that the land was first owned by Joan Atieno Mango, deceased (whose estate is the 1st Plaintiff in the suit), before it was transferred to Atul Kumar Motichand Shah, deceased (whose estate is sought to be added as a Defendant), and finally to the Applicant herein.
It is my view, in the circumstances, that given that history as shown in the green card, the presence of the estate of Atul Kumar Motichand Shah is necessary to adjudicate the issue of ownership and validity of the Plaintiffs’ claim vis-à-vis the title held by the applicant. It is the estate of the said Atul Kumar Motichand Shah that can explain how the ownership moved from the 1st Plaintiff to the applicant herein.
The plaintiffs’ main contention against the application is that the procedure adopted by the applicant is incorrect. That the correct procedure ought to have been by way of Third-Party Notice under Order 1 Rule 15.
As the Plaintiffs maintain that they have no claim against the party sought to be added to the suit, I find that the applicant should then adopt the procedure provided in Order 1 Rule 15 of Third-Party proceedings so as to bring the proposed parties on board. For that purpose, the Third Party proceedings shall be initiated by the applicant within 14 days of this Ruling in accordance with the provisions of Order 1 Rule 15.
The application for joinder is therefore dismissed. Each party to bear its own costs of the application.
Orders accordingly.
Ruling dated and signed at Kisumu and delivered virtually this 11th day of June 2026.
E. ASATI
JUDGE
In the presence of:
Atika .. Court Assistant.
No appearance for the applicant.
Obok for the Plaintiffs.
| KSM ELCLC CASE NO. E027 OF 2024 RULING | Page 1 |