Lund-Henriksen & another (As Administrators of the Estate of Philp Denis Nagenda Wilson) v Kabaria & 2 others (Environment & Land Case E320 of 2021) [2025] KEELC 3386 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a land dispute claimant to amend their case, add parties, and post a court order on the property, but declined extra guard protection.
What this practically means
#Executive summary
#Key legal issues
#Competence of the virtually commissioned Supporting Affidavit
The affidavit is proper despite virtual commissioning
The court held commissioning is not a mere technicality but found the deponent explained the virtual process before the commissioner for oaths and produced a certificate of electronic evidence under Sections 65(8) and 106B(4) of the Evidence Act. It also found no merit in the argument that commissioning before a commissioner rather than a notary public was fatal, given the virtual context.
Leave to amend the plaint and join the proposed 4th and 5th Defendants
Leave granted; the intended Defendants are necessary parties
Applying Order 8 and Order 1 Rule 10(2) CPR and the principles in Pravin Bowry, the court found that since ownership of the suit property is in issue and the intended Defendants claim it under an alleged conveyance, their joinder is necessary for effectual adjudication and causes no prejudice to any party.
Leave to display the court order on the suit premises
Granted, with police assistance for enforcement
Given the temporary injunction of 17th November 2021 remains in force and the 1st Defendant has repeatedly removed displayed copies, the court saw no reason to refuse the request and directed the OCS Kilimani to assist.
Protection of the Plaintiffs' guards from interference
Refused
The court held the subsisting injunctive orders suffice; any breach amounts to contempt carrying legal consequences, so an additional order protecting guards is unnecessary.
Legal principles established
#- Commissioning of an affidavit is a fundamental requirement; an affidavit is made by execution in the presence of an authorised officer, but a virtual commissioning may be valid where supported by evidence of the process and a certificate under Section 106B of the Evidence Act
- The court's discretion to amend pleadings and join parties is wide but must be exercised judicially to bring out the real issues and avoid prejudice
- Joinder of a party is warranted where their presence is necessary to enable the court effectually and completely adjudicate upon and settle all questions in the suit, provided no uncompensatable prejudice results
Court orders
#- 1.Leave granted to the Plaintiffs to amend the Amended Plaint in accordance with the draft Further Amended Plaint within 14 days
- 2.Leave granted to the Plaintiffs, through their caretaker, to display a copy of the court's order dated 17th November, 2021 on the external part of the suit premises pending determination of the suit
- 3.OCS Kilimani Police Station directed to provide assistance in enforcing order (ii)
- 4.Costs of the application shall be in the cause
- Jurisdiction invoked
- Sections 1A and 3A of the Civil Procedure Act, Cap 21; Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lund-Henriksen & another (As Administrators of the Estate of Philp Denis Nagenda Wilson) v Kabaria & 2 others (Environment & Land Case E320 of 2021) [2025] KEELC 3386 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3386/eng@2025-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.