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ELCPartially Allowed· [2025] KEELC 3386 (KLR)

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)

Environment and Land Court
27 March 2025
5,143 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs, administrators of the estate of the deceased registered owner of L.R No 1/414, sought leave to further amend their plaint to join two alleged fraudulent purchasers as 4th and 5th Defendants, leave to display the court's injunction order of 17th November 2021 on the suit premises, and orders restraining interference with their guard, with police assistance. The 1st Defendant opposed, contending the Supporting Affidavit was fatally defective because the deponent commissioned it virtually from outside Kenya, and asserting she is the lawful registered proprietor. The court framed four issues. On competence, it held that although physical commissioning is a fundamental requirement, a virtual commissioning is acceptable where, as here, the deponent explained the process and produced a certificate of electronic evidence under Sections 65(8) and 106B(4) of the Evidence Act; commissioning before a commissioner rather than a notary was not fatal in the circumstances. On amendment and joinder, applying Order 8 and Order 1 Rule 10(2) of the Civil Procedure Rules and the principles in Pravin Bowry and Deported Asians Custodian Board, the court found the intended Defendants, who claim the property under a conveyance of 3rd December 2015, are necessary parties whose joinder causes no prejudice. Leave to display the court order on the premises was granted, with the OCS Kilimani directed to assist. However, the court declined to order protection of the Plaintiffs' guards, holding the subsisting injunction is a sufficient safeguard whose breach constitutes contempt. The Motion partly succeeded, with costs in the cause. Dated, signed and delivered virtually in Nairobi on 27th March 2025 by O. A. Angote, Judge.

Key legal issues

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01

Competence of the virtually commissioned Supporting Affidavit

Holding

The affidavit is proper despite virtual commissioning

Reasoning

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.

02

Leave to amend the plaint and join the proposed 4th and 5th Defendants

Holding

Leave granted; the intended Defendants are necessary parties

Reasoning

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.

03

Leave to display the court order on the suit premises

Holding

Granted, with police assistance for enforcement

Reasoning

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.

p. 9
04

Protection of the Plaintiffs' guards from interference

Holding

Refused

Reasoning

The court held the subsisting injunctive orders suffice; any breach amounts to contempt carrying legal consequences, so an additional order protecting guards is unnecessary.

p. 9

Legal principles established

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  • 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

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  1. 1.Leave granted to the Plaintiffs to amend the Amended Plaint in accordance with the draft Further Amended Plaint within 14 days
  2. 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. 3.OCS Kilimani Police Station directed to provide assistance in enforcing order (ii)
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 3A, 100
  • Civil Procedure Rules, 2010Order 1 Rules 3, 10(2), 10(4); Order 8 Rules 3(1),(2),(5); Order 8 Rule 5(1); Order 19 Rule 7; Order 51 Rule 1
  • Oaths and Statutory Declarations Act, Cap 15Sections 4(1), 5
  • Oaths RulesRule 7
  • Evidence ActSections 65(8), 106B(4)
  • Interpretation and General Provisions ActSection 72
  • High Court (Organization and Administration) Act, 2015Section 27
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Practice Directions to Standardize Practice and Procedures in the High Court (Gazette Notice No. 189 of 2022)
  • Public Notaries Act

Cases cited (15)

  • Alice Wairimu Kabaria vs John Muriithi and Clement Ngumi, CMCC E287 of 2021
  • ED Foods S.R.L vs Africas Best (PTY) Ltd
  • Andrea Moretti and Elena Dardanelli and 5 Others vs Jokafa Limited and Pasquale Tilito & 2 Others
  • Kingori vs Chege & 3 Others
    (2002)2 KLR 243
  • Institute for Social Accountability & Another vs Parliament of Kenya & 3 others
    [2014] eKLR
  • Mary Gathoni & Another vs Frida Ariri Otolo & Anor
    [2020]eKLR
  • Joan Akoth Ajuang & another v Michael Owuor Osodo the Chief Ukwala Location & 3 Others; Law Society of Kenya & another
    [2020] eKLR
  • Dardanelli & 6 others vs Tilito & 3 Others
    (Land Case E041 of 2024)[2025] KEELC 392 (KLR)(6 February 2025)
  • Mghendi v Sports Disputes Tribunal; Oriku & 15 Others (Interested Parties)
    (Judicial Review E001 of 2024) [2024] KEHC 3220 (KLR) (4 April 2024)
  • Elijah Kipngeno Arap Bii vs Kenya Commercial Bank Limited
    [2013] eKLR
  • Joseph Ochieng & 2 others vs First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Pravin Bowry vs John Ward and Another
    [2015] eKLR
  • Deported Asians Custodian Board vs Jafier Brothers Ltd
    [1999] 1 E.A. 55 (SCU)
  • JMK vs MWM & Another
    [2015] eKLR
  • Central Kenya Ltd. vs Trust Bank & 4 others
    CA No. 222 of 1998
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

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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, "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.