Mukuha & another v County Government of Nakuru & 6 others (Environment & Land Case E007 of 2024) (Environment and Land) [2025] KEELC 1436 (KLR)
The bottom line
#A Kenyan court refused to 'reinstate' a plaintiff who was never removed, because the order both sides relied on simply did not exist.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could vary or review a non-existent order of 12th May 2023
No such order exists; the court cannot vary an order that is not on the record.
The court examined Sections 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules, which confer discretion to review a decree or order. Both provisions presuppose the existence of a decree or order from which an appeal lies. Having perused the record, the court found the proceedings of 9th May 2023 (directions on submissions) followed by the ruling of 6th June 2023, but no order of 12th May 2023 striking out the 3rd Plaintiff. Making an order of variation in respect of a non-existent order would be a futile exercise.
Whether Lucy Wanjiru Nyaga needed reinstatement as 3rd Plaintiff
She was never struck out and remains a party; the amendment application was unnecessary.
The 3rd Plaintiff had been joined pursuant to an application dated 13th March 2018 allowed by a ruling of 30th April 2019. The subsequent application of 17th April 2023 sought only to add additional Defendants (Naivasha Industrial Complex Ltd, National Land Commission and the Attorney General), not to strike out the 3rd Plaintiff. Since no striking-out order was made, she remained on record and the application lacked merit.
Whether the amendment power under Section 100 of the Civil Procedure Act and Order 8 Rule 5(1) should be exercised
Although amendment is permitted at any stage, the court will not exercise the power where the application is premised on a non-existent order.
The court acknowledged the wide discretion to allow amendment of pleadings at any stage to determine the real issues in controversy, and that the discretion must be exercised judiciously. However, since the foundation of the application — the alleged striking out of the 3rd Plaintiff — was factually absent, the amendment power need not be invoked. Courts do not act in vain.
Legal principles established
#- A court cannot vary a decree or order that does not exist on the record; courts do not act in vain by making futile orders.
- Where no order striking out a party was ever made, that party remains on record and an application to reinstate them lacks merit.
Court orders
#- 1.The Notice of Motion application dated 9th October 2024 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A, 99 and 100 of the Civil Procedure Act; Order 1 Rules 3 and 10 and Order 8 Rules 2, 3 and 4 of the Civil Procedure Rules; Articles 10, 27, 47, 48, 50(1) and 159(2)(d) of the Constitution; inherent jurisdiction of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mukuha & another v County Government of Nakuru & 6 others (Environment & Land Case E007 of 2024) (Environment and Land) [2025] KEELC 1436 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1436/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.