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ELCDismissedNot stated in judgment· [2025] KEELC 1436 (KLR)

Mukuha & another v County Government of Nakuru & 6 others (Environment & Land Case E007 of 2024) (Environment and Land) [2025] KEELC 1436 (KLR)

Environment and Land Court
20 March 2025
3,046 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicants, Plaintiffs in a land suit, moved the court by Notice of Motion dated 9th October 2024 seeking to vary or adjust orders allegedly made on 12th May 2023 striking out Lucy Wanjiru Nyaga as 3rd Plaintiff, to rejoin her as a necessary and principal party (being the legal administratrix of the estate of Joseph Nyaga Wambiti), and for leave to further amend their Plaint to include her. The application was grounded on Order 1 Rules 3 and 10 and Order 8 of the Civil Procedure Rules, Sections 1A, 1B, 3, 3A, 99 and 100 of the Civil Procedure Act, Articles 10, 27, 47, 48, 50(1) and 159(2)(d) of the Constitution, and the court's inherent jurisdiction. The 1st Defendant did not oppose; the 2nd, 4th, 6th and 7th Defendants did not participate; the 3rd and 5th Defendants opposed, arguing the application was an abuse of process, a fishing expedition brought eight years after the suit, and that the Plaintiffs had previously sought to strike out the very party they now sought to reinstate. In determining the matter, Oundo J perused the record and found that the pivotal order of 12th May 2023 relied upon by both sides does not exist. The 3rd Plaintiff had been joined pursuant to an application of 13th March 2018 allowed on 30th April 2019; the later application of 17th April 2023, allowed by a ruling of 6th June 2023, concerned only the addition of further Defendants (Naivasha Industrial Complex Ltd, the National Land Commission and the Attorney General). The court reasoned that under Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules it has discretion to review a decree or order, but cannot vary an order that does not exist; courts must not act in vain by making futile orders. Since Lucy Wanjiru Nyaga was never struck out and remains a party, the application lacked merit. It was dismissed with costs on 20th March 2025.

Key legal issues

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01

Whether the court could vary or review a non-existent order of 12th May 2023

Holding

No such order exists; the court cannot vary an order that is not on the record.

Reasoning

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.

p. 6
02

Whether Lucy Wanjiru Nyaga needed reinstatement as 3rd Plaintiff

Holding

She was never struck out and remains a party; the amendment application was unnecessary.

Reasoning

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.

p. 6
03

Whether the amendment power under Section 100 of the Civil Procedure Act and Order 8 Rule 5(1) should be exercised

Holding

Although amendment is permitted at any stage, the court will not exercise the power where the application is premised on a non-existent order.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 9th October 2024 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 1 Rules 3 and 10
  • Civil Procedure RulesOrder 8 Rules 2, 3, 4 and 5(1)
  • Civil Procedure Rules, 2010Order 45 Rule 1(1)
  • Constitution of KenyaArticles 10, 27, 47, 48, 50(1), 159(2)(d)

Cases cited (6)

  • General Manager E AR & HA & Thierstein
    (1968) 1 EA 354 (HCK)
  • Central Kenya Limited v Trust Bank Limited
    (2000) EA 365
  • John Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR
  • Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
  • Attahiro vs Bagundo
    1998 3 NWLL pt 545 page 656
  • Kassam v Bank of Baroda (Kenya) Ltd
    [2002] eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.