Machuke & 2 others (Suing as the legal representative of the Estate of Silas Njeru Njiru - Deceased) v Mukera & another (Environment & Land Case 220 of 2014) [2024] KEELC 4474 (KLR)

The court applied the discretionary test in Order 1 rule 10(2): a party may be joined whose presence is necessary to enable the court effectually and completely to adjudicate upon and settle all questions in the suit. Because the deceased was originally a plaintiff and died before conclusion, his estate's interests could only be ventilated through his legal representative; the pending orders would affect the estate's interests.

The court held it fair and in the interest of justice to permit the newly joined party to file pleadings out of time because the suit had not been set down for pretrial, so the other parties could respond. The court also, of its own motion under sections 1A and 3A of the Civil Procedure Act, allowed amendment of the pleadings to include the 3rd plaintiff, notwithstanding that this relief was not expressly sought.

The 2nd plaintiff contended the applicant was a stranger and not the deceased's biological son, challenging the limited grant. The court held that any challenge to the grant is a matter for the succession court, as it lacks jurisdiction over it. Since the grant was acquired through a court process, the court was satisfied the applicant was competent to hold it.